Beaulieu v. Dannels et al

Filing 13

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the District Court, enter an order Dismissing the 1 Petition for Writ of Habeas Corpus (State/2254). Beaulieu's claims are not exhausted. Any party may serve and file written obje ctions within 14 days of being served with a copy of this report and recommendation. If objections are not timely filed, they may be deemed waived. Local Rules permit a response to an objection, they do not permit a reply to a response. Signed by Magistrate Judge Leslie A Bowman on 3/18/19. (BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Hayden A. Beaulieu,
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Petitioner,
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vs.
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Mark Dannels, et al.,
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Respondents.
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CV 18-0332-TUC-RCC (LAB)
REPORT AND RECOMMENDATION

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Pending before the court is a petition for writ of habeas corpus filed on July 5, 2018, by
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Hayden A. Beaulieu, an inmate currently held in the Cochise County Jail in Bisbee, Arizona.
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(Doc. 1); (Doc. 8) Beaulieu challenges a conviction imposed by the Cochise County Superior
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Court on June 27, 2016. (Doc. 1, p. 1)
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Pursuant to the Rules of Practice of this court, the matter was referred to Magistrate
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Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).
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The Magistrate Judge recommends that the District Court, after its independent review
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of the record, enter an order dismissing the petition. Beaulieu’s claims are not exhausted.
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Summary of the Case
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On June 27, 2016, Beaulieu was convicted after a plea of guilty of attempted arson of an
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occupied structure. (Doc. 10, pp. 24-25) The trial court sentenced Beaulieu to five years
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supervised probation. Id.
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Beaulieu filed a notice of post-conviction relief (PCR) on September 15, 2016. (Doc.

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11, p. 29) Beaulieu filed a second notice of post-conviction relief on September 18, 2018.

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(Doc. 11-9, p. 2) He filed a petition on November 5, 2018 claiming (1) trial counsel Manch was

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ineffective for failing to present mitigating evidence of his mental health evaluation and failing

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to seek transfer to juvenile court and failing to advocate for his transfer to a juvenile facility, (2)

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PCR counsel Danies was ineffective for failing to communicate with him, (3) his due process

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rights were violated when the superior court failed to give him notice that Danies was

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appointed, (4) his right to due process and to be free from cruel and unusual punishment was

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violated when the superior court failed to determine his moral culpability and amenability to

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rehabilitation before the state was allowed to proceed against him as an adult, (5) he was

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subject to cruel and unusual punishment when he was attacked in the Cochise County Jail on

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November 27, 2015, and in 2018 the Cochise County jail policy prevented him from taking his

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medications, (there is no sixth claim for relief), (7) he was suffering from severe mental distress

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when he committed the crime, (8) AZ Const. Art. 4 Sec. 22, which states that juveniles who are

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charged with certain crimes must be charged as adults, violates the 5th and 8th Amendments, (9)

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A.R.S. s 13-501 is illegal under the 5th and 8th Amendments because it gives prosecutors sole

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discretion to charge minors as adults for crimes not described in the Arizona Constitution, (10)

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AZ Const. Art. 2 Sec. 2.1(A)(5) is illegal under the 5th Amendment as it grants victims the right

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to decline questioning or being summoned as a witness. (Doc. 9, p. 4); (Doc. 11-10, pp. 2-21)

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The state filed a response to the petition on December 11, 2018. (Doc. 12, p. 7) The petition

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remains outstanding.

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A petition to revoke probation was filed on September 6, 2017, apparently because
Beaulieu left Arizona without permission and traveled to California. (Doc. 10, p. 28, 52)

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On May 1, 2018, Beaulieu filed a petition for writ of certiorari with the Supreme Court

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of the United States apparently challenging his transfer from California back to Arizona. (Doc.

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10, p. 31, 34) The petition was denied on November 19, 2018. (Doc. 10, p. 43)

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Beaulieu also filed a petition for special action in the Arizona Court of Appeals

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challenging his transfer back to Arizona. (Doc. 10, p. 65) The court dismissed the action on
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July 11, 2018, because Beaulieu failed to file a copy of the ruling of the Cochise County

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Superior Court below. (Doc. 10, pp. 65-67) It appears that Beaulieu failed to file a special

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action petition with the superior court before filing with the court of appeals.

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On May 10, 2018, Beaulieu also filed a petition for writ of habeas corpus in the Arizona

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Court of Appeals. (Doc. 11, p. 6) The court dismissed the action on July 11, 2018, because

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Beaulieu failed to file a copy of the ruling of the Cochise County Superior Court below. (Doc.

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11, pp. 15, 20, 22) It appears that Beaulieu failed to file a petition for writ of habeas corpus

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with the superior court before filing with the court of appeals.

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The trial court reinstated the intensive probation on September 12, 2018. (Doc. 11-7, p.

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2) On November 8, 2018, Beaulieu filed a petition for writ of habeas corpus with the Arizona

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Supreme Court. (Doc. 12, p. 14)

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A second petition to revoke was filed on November 30, 2018. (doc. 12, p. 3)

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On July 5, 2018, Beaulieu filed the pending petition for writ of habeas corpus in this

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court pursuant to 28 U.S.C. § 2254. (Doc. 1) He claims (1) A.R.S. § 13-1501 violates due

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process because he was charged as an adult for a crime that did not fall under that statute and

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the statute gives prosecutors discretion to charge minors as adults, (2) counsel was ineffective

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for failing to present mitigating evidence of his PTSD (post-traumatic stress disorder) and

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failing to advocate for his transfer to juvenile court and to advocate for him when he was

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assaulted by inmates at the Cochise County Jail, (3) the court failed to evaluate his competency

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and deprived him of an opportunity to contest being charged as an adult, (4) he was subject to

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cruel and unusual punishment when the Superior Court housed him at the Cochise County Jail

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at age 15 where he was deprived of rehabilitation services, education, and medication and was

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subject to assault. (Doc. 1, pp. 1-10) Beaulieu admits he has not presented any of his claims

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to the Arizona Court of Appeals.

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On January 18, 2019, the respondents filed an answer arguing Beaulieu’s claims are
waived, unexhausted, or procedurally defaulted. (Doc. 9)
Beaulieu did not file a timely reply.

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Discussion

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

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Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is

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in custody pursuant to the judgment of a state court, the writ will not be granted unless prior

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adjudication of the claim –

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(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).
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“[The] standard is intentionally difficult to meet.” Woods v. Donald, 135 S.Ct. 1372,
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1376 (2015). “‘[C]learly established Federal law’ for purposes of § 2254(d)(1) includes only
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the holdings, as opposed to the dicta, of th[e] [Supreme] Court’s decisions.” Id.
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A decision is “contrary to” Supreme Court precedent if that Court already confronted
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“the specific question presented in this case” and reached a different result. Woods, 135 S.Ct.
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at 1377.

A decision is an “unreasonable application of” Supreme Court precedent if it is

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“objectively unreasonable, not merely wrong; even clear error will not suffice.” Id. at 1376.
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“To satisfy this high bar, a habeas petitioner is required to show that the state court’s ruling on
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the claim being presented in federal court was so lacking in justification that there was an error
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well understood and comprehended in existing law beyond any possibility for fairminded
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disagreement.” Id. (punctuation modified)
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If the highest state court fails to explain its decision, this court looks to the last reasoned
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state court decision. Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003).

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Federal habeas review is limited to those claims for which the petitioner has already
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sought redress in the state courts. This so-called “exhaustion rule” reads in pertinent part as
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follows:
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An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that – (A) the applicant has exhausted the remedies available in the courts of the
State. . . .
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28 U.S.C. § 2254(b)(1)(A).

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To be properly exhausted, a claim must be “fairly presented” to the state courts. Weaver

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v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999). In other words, the state courts must be

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apprised of the issue and given the first opportunity to rule on the merits. Id.

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In addition, the petitioner must explicitly alert the state court that he is raising a federal

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constitutional claim. Casey v. Moore, 386 F.3d 896, 910-11 (9th Cir. 2004), cert. denied, 545

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U.S. 1146 (2005). The petitioner must make the federal basis of the claim explicit either by

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citing specific provisions of federal law or federal case law, even if the federal basis of a claim

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is “self-evident,” Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), cert. denied, 528 U.S.

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1087 (2000), or by citing state cases that explicitly analyze the same federal constitutional

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claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).

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

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the exhaustion requirement is ordinarily satisfied once the petitioner presents his claims to the

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Arizona Court of Appeals for review. Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005),

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cert. denied, 546 U.S. 818 (2005); Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999), cert.

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denied, 529 U.S. 1124 (2000). If state remedies have not been properly exhausted, the petition

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may not be granted and ordinarily should be dismissed without prejudice. See Johnson v. Lewis,

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

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

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

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

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

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court would raise a procedural bar if it were presented now. Id.

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

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

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

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Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998). “To qualify for the fundamental miscarriage

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of justice exception to the procedural default rule, however, [the petitioner] must show that a
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constitutional violation has probably resulted in the conviction when he was actually innocent

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of the offense.” Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008).

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If a claim is procedurally defaulted and is not excused, the claim should be dismissed

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with prejudice because the claim was not properly exhausted and “the petitioner has no further

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recourse in state court.” Franklin, 290 F.3d at 1231.

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In this case, Beaulieu candidly admits that he has not presented his claims to the Arizona
Court of Appeals. (Doc. 1) Accordingly, they are not exhausted.

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The respondents argue that some of these claims are waived and some are procedurally

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defaulted, but because Beaulieu’s post-conviction relief petition is still pending in the state

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court, this court considers such arguments to be premature. The District Court should dismiss

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the petition for failure to exhaust rather than assume how the state courts will rule on his

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pending petition.

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RECOMMENDATION

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

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of the record, enter an order Dismissing the petition for writ of habeas corpus. (Doc. 1)

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Beaulieu’s claims are not exhausted.

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

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

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timely filed, they may be deemed waived. The Local Rules permit a response to an objection.

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They do not permit a reply to a response.

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DATED this 18th day of March, 2019.

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