Petition for Writ of Certiorari — Edward Faye Parks, Petitioner v. Bruno Stolc, Warden, et al.

Supreme Court briefMay 16, 2019

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

MAR 15 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

EDWARD FAYE PARKS,

Plaintiff-Appellant,

No. 18-17370

D.C. No. 2:16-cv-04570-DLR

District of Arizona,

Phoenix

BRUNO STOLC: ATTORNEY GENERAL ORDER

FOR THE STATE OF ARIZONA,

Respondents-Appellees.

Before:

CANBY and WARDLAW, Circuit Judges.

The request for a certificate of appealability is denied because the notice of

appeal was not timely filed. See 28 U.S.C. §§ 2107, 2253(c)(2).

Any pending motions are denied as moot.

DENIED.

Case 2:16-cv-04570-DLR Document 41 Filed 05/02/18 Page 1 of 7

LIATC

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Edward F. Parks,

Petitioner,

REPORT AND RECOMMENDATION

Attorney General of the State of Arizona,

et al.,

Respondents.

NO. CV-16-4570-PHX-DLR (DKD)

TO THE HONORABLE DOUGLAS L. RAYES, U.S. DISTRICT JUDGE:

Edward F. Parks filed an Amended Petition for Writ of Habeas Corpus

("Amended Petition"), challenging his convictions in Mohave County Superior Court.

Respondents contend that some of the claims in his Amended Petition are procedurally

barred, one is not cognizable in habeas, and one fails on the merits. As explained below,

the Court recommends that Parks' Amended Petition be denied and dismissed with

prejudice.

Background

Eight calendar days before the start of his jury trial, Parks moved to continue

during a case management conference. (Doc. 32-1 at 26, 32-2 at 2) The Superior Court

denied the motion to continue but informed Parks that "denying the request to continue

does not preclude you from hiring your own attorney." (Doc. 32-1 at 30: 12-13) Parks

did not hire private counsel for the trial. (Doc. 32-2 at 3)

Case 2:16-cv-04570-DLR Document 41 Filed 05/02/18 Page 2 of 7

The case proceeded to trial and Parks was convicted by a jury in Mohave County

Superior Court of one count of disorderly conduct with a weapon, a class 6 felony; one

count of aggravated assault of a peace officer, a class 2 felony; and one count of

aggravated assault of a peace officer, a class 4 felony. (Doc. 32-4 at 80) He was

sentenced to "concurrent prison terms of 3.75 years, 15.75 years, and 10 years

respectively." State v. Parks, 2013 WL 2731694, at *1 (Ariz. App., 2013).' He timely

appealed and argued that the Superior Court should not have (1) denied his motion to

continue so that Parks could have additional time to hire private counsel; (2) admitted

statements made by a witness; and (3) admitted rebuttal evidence. (Doc. 32-4 at 75)

Specifically, the Arizona Court of Appeals noted that Parks had "merely conveyed

that he was "looking into" hiring counsel and "saving money" to do so. He had not yet

retained counsel and gave no indication that he had the current financial wherewithal to

do so." State v. Parks, 2013 WL 2731694, at *2, ¶ 11 (Ariz. App., 2013). The Court of

Appeals concluded that the Superior Court "did not prevent Parks from hiring private

counsel for trial on February 14 and did not abuse its discretion in denying a continuance

for that purpose, especially when Parks gave no indication he was capable of retaining

counsel presently or in the near future." Id. at *3, ¶ 12. The Court of Appeals found the

Superior Court did not abuse its discretion on any of Parks' claims and affirmed Parks'

convictions and sentences. Id. at *4, ¶ 23. Parks did not petition the Arizona Supreme

Court for review. (Doc. 32-5 at 2)

Parks timely initiated post-conviction relief proceedings and argued that he had

received ineffective assistance of trial counsel because his appointed counsel had not

provided him adequate information to make an informed decision about the State's plea

offer. (Docs. 32-4 at 154-57, 32-5 at 4-26) The Superior Court conducted an evidentiary

hearing where Parks' trial counsel testified that she had informed Parks about the

'Respondents did not provide the Court with a sufficient record and only included

one page of the Superior Court's ruling, did not include any of the appellate briefing and

did not include either of the Court of Appeals' decisions. This is not the first such issue

in-this mattëf5ee Doë23 at iLFãñd

The••C• trusts-that thisttrn iitifot

be repeated.

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Case 2:16-cv-04570-DLR Document 41 Filed 05/02/18 Pa.e 3 of

sentence he was facing at trial. (Doe. 32-5 at 59-74) The Court "found that trial counsel

had properly advised Parks regarding the State's burden, and that Parks would not have

agreed to the plea offer regardless, as he would only accept a probation-only offer. The

trial court denied relief." State v. Parks, 2016 WL 7093864, at *1 (Ariz. App. 2016).

Parks timely appealed and the Arizona Court of Appeals granted review but denied relief.

Id. at *2.

Parks petitioned the Arizona Supreme Court for review and, while that Petition

was pending, Parks initiated these habeas proceedings. The Court granted him leave to

file his Amended Petition and then stayed this matter until the termination of Parks' state

court proceedings. (Does. 9, 23, 29) Now, the state court proceedings have concluded

and Respondents have filed an Answer. (Does. 32) Parks has not filed a reply and the

time to do so has n6w expired. He has filed several additional motions and notices and

the Court considers the Amended Petition to be fully briefed. (Does. 30, 31, 33, 34, 35,

36, 37, 38, 39, 40)

II.

Analysis: Ground 2(a)

It appears that, in Ground Two of his Amended Petition, Parks is raising the same

claim as in his direct appeal, namely that the Superior Court should have stayed his trial

so that he could retain private counsel. (Doe. 10 at 13)

On habeas review, this Court can only grant relief if the petitioner demonstrates

prejudice because the adjudication of a claim either "(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." 28 U.S.0 § 2254(d). This is a "highly

deferential standard for evaluating state-court rulings" which demands that state-court

decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24

(2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)).

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Case 2:16-cv-04570-DLR Document 41 Filed 05/02/18 Page 4 of 7

This means that "a decision adjudicated on the merits in a state court and based on

a factual determination will not be overturned on factual grounds unless objectively

unreasonable in light of the evidence presented in the state-court proceeding." Miller-El

v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(d)(2) and Williams v.

Taylor, 529 U.S. 362, 399 (opinion of O'Connor, J.)). Put another way, "[a] state court's

determination that a claim lacks merit precludes federal habeas relief so long as

'fairminded jurists could disagree' on the correctness of the state court's decision."

Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S.

652, 664 (2004)).

Here, the Court of Appeals found that the trial court "did not abuse its discretion in

denying a continuance

retaining counsel presently or in the near future." State v. Parks, 2013 WL 2731694, at

*3, ¶12 (Ariz. App., 2013). This conclusion was based on Parks' statements to the

Superior court. Applying the appropriate standard of review, the Court cannot say that

the Court of Appeals' decision was objectively unreasonable. Accordingly, Parks is not

entitled to relief on this claim.

III. Analysis: Remaining Claims

especially when Parks gave no indication he was capable of

A state prisoner must properly exhaust all state court remedies before this Court

can grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan

v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991).

Arizona prisoners properly exhaust state remedies by fairly presenting claims to the

Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel,

526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (91h Cir. 1999);

Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). To fairly present a claim, a

petitioner must support it with a statement of the operative facts and the specific federal

legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S.

152, 162-63 (1996); Duncan, 513 U.S. at 365-66. General appeals to broad constitutional

281

Case 2:16-cv-04570-DLR Document 41 Filed 05/02/18 Page 5 of 7

principles, "such as due process, equal protection, and the right to a fair trial," do not

establish exhaustion. Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).

Here, except as noted above, the Amended Petition does not include claims that

were fairly presented to the Arizona Court of Appeals. Instead, he argues in Ground One

that he was unlawfully arrested at his residence in violation of the First, Fourth, Sixth,

Eighth, and Fourteenth Amendments. (Doc. 10 at 12) In Ground Two, he argues that he

was denied his Sixth Amendment right to have witnesses at trial and that there was no

8 probable cause to impound a truck that was on private property. (Doc. 10 at 13) In

Ground Three, he argues that his PCR counsel filed his PCR petition six months late and

failed to raise issues regarding lack of evidence. (Doc. 10 at 14) Finally, he argues in

Ground Four that he is unlawfully imprisoned for five years on a lesser included offense

that was dismissed by the jury due to lack of evidence. (Doc. 10 at 15) Even construing

his claims broadly, these arguments were not presented to the Arizona Court of Appeals.

Moreover, it is now too late to do so which renders these claims subject to an

implied procedural bar because these claims was not fairly presented in state court and no

state remedies remain available to Parks. Teague v. Lane, 489 U.S. 288, 298-99 (1989);

Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir.

2002); Poland v. Stewart, 169 F.3d 573, 586 (91h Cir. 1999); White v. Lewis, 874 F.2d

599,602 (9th Cir. 1989).

This Court can review a procedurally defaulted claim if the petitioner can

demonstrate either cause for the default and actual prejudice to excuse the default, or a

miscarriage of justice. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321

(1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986);

States v. Frady, 456 U.S. 152, 167-68 (1982). Here, Parks has not attempted to

demonstrate either and the Court sees no independent grounds for any such

demonstration.

Accordingly, the Court cannot review the claims in Parks' Amended Petition.

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Case 2:16-cv-04570-DLR Document 41 Filed 05/02/18 Page 6 of 7

1 I IV.

Additional Motions and Notices

The Court has reviewed all of the Notices filed by Parks as well as his four

pending Motions. (Docs. 24, 25, 30, 31, 33, 34, 35, 36, 37, 38, 39, 40) The Notices do

not entitle Parks to relief. The Motions are not well taken and will be denied.

IT IS THEREFORE ORDERED denying Parks' Motion (Doc. 30), Motion for

Order to Show Cause (Doc. 35), Motion to Dismiss Case (Doc. 36), and Motion

Requesting Consideration of Newly Discovered Evidence (Doc. 40).

IT IS THEREFORE RECOMMENDED that Edward F. Parks' Amended

Petition for Writ of Habeas Corpus be denied and dismissed with prejudice.

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and

leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition

is justified by a plain procedural bar and jurists of reason would not find the ruling

debatable.

This recommendation is not an order that is immediately appealable to the Ninth

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules

of Appellate Procedure, should not be filed until entry of the district court's judgment.

17 The parties shall have fourteen days from the date of service of a copy of this

recommendation within which to file specific written objections with the Court. See, 28

U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter,

the parties have fourteen days within which to file a response to the objections. Failure

timely to file objections to the Magistrate Judge's Report and Recommendation may

result in the acceptance of the Report and Recommendation by the district court without

further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (91h Cir. 2003).

Failure timely to file objections to any factual determinations of the Magistrate Judge will

be considered a waiver of a party's right to appellate review of the findings of fact in an

Case 2:16-cv-04570-DLR Document 41 Filed 05/02/18 Page 7 of 7

order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule

72, Federal Rules of Civil Procedure.

Dated this 2nd day of May, 2018.

7N 0

David K. Duncan

United States Magistrate Judge

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Case 2:16-cv-04570-DLR Document 45 Filed 06/22/18 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CV- 1 6-4570-PHX-DLR-(DKD)

Edward F. Parks,

Petitioner,

Attorney General of the State of Arizona, et

al.,

ORDER

and

DENIAL OF CERTIFICATE OF

APPEALABILITY AND IN FORMA

PAUPERIS STATUS

Respondents.

Pending before the Court is the Report and Recommendation ("R&R") of

Magistrate Judge David K. Duncan (Doc. 41) regarding petitioner's Amended Petition

for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 10). The R&R

recommends that the Amended Petition be denied and dismissed with prejudice. The

Magistrate Judge advised the parties that they had fourteen days from the date of service

of a copy of the R&R to file specific written objections with the Court. (Doc. 41 at 6

(citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72).) Petitioner filed

objections on May 9, 2018, (Doc. 42) and May 10, 2018 (Doc. 43).

The Court has considered the objections and reviewed the R&R de novo. See Fed.

R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo

determination of those portions of the Report and Recommendation to which specific

objections are made).

Case 2:16-cv-04570-DLR Document 45 Filed 06/22/18 Page 2 of 3

As to Ground Two, the Court agrees with the Magistrate Judge's determination

that Petitioner's claim is meritless. This Court can overturn a fact based decision

adjudicated on the merits in a state court only when it finds that the state court decision is

objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28

U.S.C. § 2254(d)(2) and Williams v. Taylor, 529 U.S. 362, 399 (opinion of O'Connor, J)).

The Magistrate Judge correctly found that this Court cannot say that the Arizona Court of

Appeals' finding that the trial court "did not abuse its discretion in denying a continuance

especially when Parks gave no indication he was capable of retaining counsel. . ."

was objectively unreasonable.

See State v. Parks, No. CA-CR 12-284, 2013 WL

2731694, at *3 ¶12 (Ariz. Ct. App. April 23, 2013).

As to the remaining grounds the Court agrees with the findings of the Magistrate

Judge that none of the remaining claims were fairly presented to the Arizona Court of

Appeals. A state prisoner must properly exhaust all state court remedies before this

Court can grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c).

As to the Notices and four Motions which were ruled upon by the Magistrate

Judge, the Court agrees with the Magistrate Judge that the Notices do not entitle Parks to

relief and the Motions are not well taken and were properly denied.

The Court accepts the recommended decision within the meaning of Rule 72(b),

Fed. R. Civ. P., and overrules Petitioner's objections. See 28 U.S.C. § 636(b)(1) (stating

that the district court "may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate").

IT IS ORDERED that Report and Recommendation of the Magistrate Judge

(Doc. 41) is accepted.

Having considered the issuance of a Certificate of Appealability from the order

denying Petitioner's Petition for a Writ of Habeas Corpus, a Certificate of Appealability

and leave to proceed in forma pauperis on appeal are denied because the dismissal of the

Case 2:16-cv-04570-DLR Document 45 Filed 06/22/18 Page 3 of 3

Petition is justified by a plain procedural bar and reasonable jurists would not find the

ruling debatable, and because Petitioner has not made a substantial showing of the denial

of a constitutional right.

IT IS FURTHER ORDERED that the Clerk of the Court enter judgment

denying and dismissing Petitioner's Petition for Writ of Habeas Corpus filed pursuant to

28 U.S.C. § 2254 (Doc. 1) with prejudice. Petitioner's motion for new trial (Doc. 44) is

dismissed as moot. The Clerk shall terminate this action.

Having considered the issuance of a Certificate of Appealability from the order

denying Petitioner's Petition for a Writ of Habeas Corpus, a Certificate of Appealability

and leave to proceed in forma pauperis on appeal are denied because dismissal of the

Petition is justified by a plain procedural bar.

Dated this 22nd day of June, 2018.

(L çD. Rayes

Uttëd States District Judge

MIE

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