Petition for Writ of Certiorari — Michael Isidoro Sanchez, Petitioner v. Ryan Thornell, Director, Arizona Department of Corrections, Rehabilitation and Reentry, et al.

Supreme Court briefJan 3, 2024

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Case: 21-15632, 08/08/2023, ID: 12770083, DktEntry: 55-1, Page 1 of 6

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

AUG 8 2023

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

MICHAEL ISIDORO SANCHEZ,

No.

P etitioner-App ellee,

U.S. COURT OF APPEALS

21-15632

D.C. No. 4:17-cv-00224-RM

MEMORANDUM*

DAVID SHINN, Director of the Arizona

Department of Corrections; ATTORNEY

GENERAL FOR THE STATE OF

ARIZONA,

Respondents-Appellants.

MICHAEL ISIDORO SANCHEZ,

No.

P etitioner-App ellant,

21-16940 .

D.C. No. 4:17-CV-00224-RM

DAVID SHINN, Director, Director of the

Arizona Department of Corrections;

ATTORNEY GENERAL FOR THE STATE

OF ARIZONA,

• Respondents-Appellees.

TAppeaTfrom the"UmtecTStates District Court

for the District of Arizona

Rosemary Marquez, District Judge, Presiding

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

App.003

Case: 21-15632, 08/08/2023, ID: 127,70083, DktEntry: 55-1, Page 2 of 6

Argued and Submitted April 18, 2023

: Phoenix, Arizona ■

Before: OWENS and BADE, Circuit Judges, and BAKER,** International Trade

Judge.

In this habeas action, David Shinn, in his capacity as the Director of the

Arizona Department of Corrections, timely appeals the district court’s order

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holding that the state’s post-conviction relief (PCR) procedures for pleading

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defendants are unconstitutional under Anders v. California, 386 U.S. 738 (1967).

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Michael Sanchez timely cross-appeals the denial of his motion seeking immediate

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release. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).

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In state trial court7Sanchez pleaded~guilty to one counfof sexual contact"

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with a minor and one count of attempted sexual contact with a minor. The court

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accepted his plea and sentenced him to prison accordingly. After his guilty plea

and conviction, Sanchez filed three separate PCR proceedings under Arizona Rule

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of Criminal Procedure 32.4. In each of these proceedings, the court appointed

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separate PCR counsel, and eaich appointed counsel found that there were no

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colorable claims for relief and then remained in an advisory capacity only. In the

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first and second PCR proceedings, Sanchez filed a pro se petition. The state trial

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and appellate courts rejected his claims. In his third PCR proceeding, rather than

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The Honorable M. Miller Baker, Judge for the United States Court of

International Trade, sitting by designation.

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Case: 21-15632, 08/08/2023, ID: 12770083, DktEntry: 55-1, Page 5 of 6

procedural bar”) (cleaned up). Thus, there is no procedural bar to our reaching

Sanchez’s Anders claim.

2. Although the state appellate court did not expressly address Sanchez’s

Anders claim as it applied to his first and second PCR proceedings and instead

limited its discussion to his Anders challenge to his third PCR proceeding, we

“presume that the [former] claim was adjudicated on the merits.” Johnson v.

Williams, 568 U.S. 289, 301 (2013). Although “that presumption can in some

limited circumstances be rebutted,” id., we do not thinlc it has been rebutted here.

Sanchez presented two similar Anders claims to the state appellate court, and “[t]he

possibility that the [state appellate court] had simply overlooked [Sanchez’s other

Anders claims]” was not raised by either party. Id. at 306. Moreover, “the fact that

[Sanchez’s three Anders] claims are so similar makes it unlikely that the [state

appellate court] decided one while overlooking the otherfs].” Id. at 305.

3. The district court erred in concluding that the state appellate court ruled

that Anders does not apply in PCR proceedings. The state appellate court followed

Chavez I, which we held “correctly found Anders applies to of-right PCR

proceedings.” Chavez v. Bmovich, 42 F.4th 1091, 1099 (9th Cir. 2022) (Chavez II).

-------- The^districtxourtfurther erredinnofgiving the requireddeference-to -the—

state appellate court decision under the Antiterrorism and Effective Death Penalty

Act of 1996. See 28 U'.S.C. § 2254(d)(1) (providing that habeas relief may not be

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Case: 21-15632, 08/08/2023, ID: 12770083, DktEntry: 55-1, Page 6 of 6

granted to applicants detained under state law unless the state court’s merits

determination “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 ...In Chavez II, the defendant similarly

brought an Anders claim after filing a Rule 32 PCR petition. We held that Chavez I

“did not unreasonably apply clearly established federal law, as it could have

reasonably determined that Arizona’s of-right PCR procedure satisfied Anders and

its progeny.” 42 F.4th at 1103. Because the state appellate court here followed

Chavez I, we follow Chavez II and hold that the state appellate court could have

reasonably determined that “Arizona’s of-right PCR procedure satisfied Anders

and its progeny.” Id.

For these reasons, we reverse the district court’s grant of conditional habeas

relief. We also dismiss Sanchez’s cross-appeal as moot.

In No. 21-15632, REVERSED. In No. 21-16940, DISMISSED as MOOT.

1 We grant Sanchez’s motion (Diet. No. 24) to take judicial notice of

amendments related to Rule 32, and we deny Shinn’s motion (Diet. No. 34-1) to •

supplement the record as moot.

App>Q08

Case 4:17-cv-00224-RM Document 86 Filed 03/30/21 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Michael Isidoro Sanchez,

Petitioner,

No. CV-17-00224-TUC-RM

ORDER

Attorney General of the State of Arizona, et

al.,

Respondents.

Pending before the Court is Magistrate Judge D. Thomas Ferraro’s Report and

Recommendation (“R&R”) (Doc. 65), recommending that this Court dismiss Petitioner’s

Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner

filed an Objection (Doc. 74) and a Supplement to the Objection (Doc. 76); Respondents

filed a Response to the Objection and Supplement (Doc. 84); and Petitioner filed a Reply

(Doc. 85). For the following reasons, Petitioner’s Objection will be partially sustained

and partially overruled, the R&R will be partially rejected and partially adopted, and the

Amended Petition will be partially granted and partially denied.

Standard of Review

A district judge “may accept, reject, or modify, in whole or in part,” a magistrate

judge’s proposed findings and recommendations. 28 U.S.C. § 636(b)(1). The district

judge must “make a de novo determination of those portions” of a magistrate judge’s

Case 4:17-cv-00224-RM Document 86 Filed 03/30/21 Page 2 of 17

“report or specified proposed findings or recommendations to which objection is made.”

28 U.S.C. § 636(b)(1). The advisory committee’s notes to Rule 72(b) of the Federal Rules

of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only

satisfy itself that there is no clear error on the face of the record in order to accept the

recommendation” of a magistrate judge. Fed. R. Civ. P. 72(b) advisory committee’s note

to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999)

(“If no objection or only partial objection is made, the district court judge reviews those

unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL

1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions

of Report and Recommendation).

Where objections raised “are repetitive of the arguments already made to the

magistrate judge, a de novo review is unwarranted.” Vega-Feliciano v. Doctors’ Ctr.

Hosp., Inc., 100 F. Supp. 3d 113, 116 (D.P.R. 2015) (internal citation omitted); see also

Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382

(W.D.N.Y. 1992) (“It is improper for an objecting party to . . . submit[] papers to a

district court which are nothing more than a rehashing of the same arguments and

positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties

are not to be afforded a ‘second bite at the apple’ when they file objections to a R&R.”)).

A district court “has discretion, but is not required, to consider evidence presented

for the first time in a party’s objection to a magistrate judge’s recommendation.” United

States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000).

II.

Background

In 2014, Petitioner pled guilty in Cochise County Superior Court to one count of

sexual conduct with a minor and one count of attempted sexual conduct with a minor.

(Doc. 51 at 26-49.) He was sentenced in accordance with the terms of his plea agreement

to 25 years of imprisonment followed by a lifetime of probation. (Doc. 51 at 26-32.)

Petitioner unsuccessfully sought state post-conviction relief through three rounds of post

conviction review (“PCR”) proceedings. {See Doc. 65 at 1-4.) The details of Petitioner’s

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Case 4:17-cv-00224-RM Document 86 Filed 03/30/21 Page 3 of 17

state trial and PCR proceedings are set forth in the R&R and adopted herein.

On May 16, 2017, Petitioner filed a Petition for Writ of Habeas Corpus Under 28

U.S.C. § 2254. (Doc. 1.) On June 5, 2019, he filed an Amended Petition, alleging

nineteen grounds for relief. (Doc. 41.) Respondents filed a Response to the Amended

Petition (Doc. 50; see also Docs. 51 to 58) and Petitioner filed a Reply (Doc. 60).

Magistrate Judge Ferraro’s R&R finds that the original § 2254 Petition was timely

under the one-year statute of limitations set forth in the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), and that the Amended Petition relates back to the

original and is thus also timely. (Doc. 65 at 5.) However, the R&R finds that the

Amended Petition should be dismissed because the majority of the claims alleged therein

are procedurally defaulted, waived, or non-cognizable on federal habeas review, and the

remaining claims fail on the merits. (Id. at 6-28.)

In his Objection to the R&R, Petitioner raises general challenges to the R&R’s

procedural default findings and also makes specific arguments pertaining to the R&R’s

analysis of Grounds One, Two, Three, Four, Eight, Eleven, and Twelve of his Amended

Petition. (Doc. 74.)

III.

Applicable Law

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

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

is in custody pursuant to the judgment of a state court, the writ will not be granted “with

respect to any claim that was adjudicated on the merits” in state court unless the prior

adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court

proceeding.

28 U.S.C. § 2254(d). A state court decision is contrary to federal law “if the state court

arrives at a conclusion opposite to that reached by [the United States Supreme Court] on

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Case 4:17-cv-00224-RM Document 86 Filed 03/30/21 Page 4 of 17

a question of law or if the state court decides a case differently than [the Supreme Court]

on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413

(2000). A state court decision involves an unreasonable application of federal law “if the

state court identifies the correct governing legal principle from [the Supreme Court’s]

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.

Federal habeas claims are subject to the “exhaustion rule,” which requires that the

factual and legal basis of a claim be presented first to the state court. 28 U.S.C. §

2254(b)(1)(A); Weaver v. Thompson, 197 F.3d 359, 363-64 (9th Cir. 1999). If the

petitioner is in custody as a result of a judgment imposed by the State of Arizona, and the

case does not involve a life sentence or the death penalty, he must fairly present his

claims to the Arizona Court of Appeals in order to satisfy the exhaustion requirement.

See Castillo v. McFadden, 399 F.3d 993, 998 n.3 (9th Cir. 2005); Swoopes v. Sublett, 196

F.3d 1008, 1010 (9th Cir. 1999). In order to properly exhaust a claim for purposes of

federal habeas review, the petitioner must identify the federal nature of the claim to the

state court by citing federal law or precedent. Lyons v. Crawford, 232 F.3d 666, 668 (9th

Cir. 2000), as amended by 247 F.3d 904.

A claim is exhausted but procedurally defaulted if it was presented in state court

but the state court rejected it based on an independent and adequate state procedural bar.

Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003); Franklin v. Johnson, 290 F.3d

1223, 1230-31 (9th Cir. 2002). A claim is also technically exhausted but implicitly

procedurally defaulted if the petitioner failed to raise it in state court and a return to state

court to exhaust it would be futile considering state procedural rules. Franklin, 290 F.3d

at 1230-31; see also O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (finding claims

procedurally defaulted because habeas petitioner was time-barred from presenting his

claims in state court); Coleman v. Thompson, 501 U.S. 722, 735 n.l (1991) (noting that

claims are barred from habeas review when not first raised before state courts and those

courts “would now find the claims procedurally barred”).

A federal habeas court may not review a procedurally defaulted claim unless “the

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Case 4:17-cv-00224-RM Document 86 Filed 03/30/21 Page 5 of 17

prisoner can demonstrate cause for the default and actual prejudice as a result of the

alleged violation of federal law, or demonstrate that failure to consider the claims will

result in a fundamental miscarriage of justice.”’ Coleman, 501 U.S. at 750. To establish

“cause,” a petitioner must demonstrate that “some objective factor external to the defense

impeded counsel’s efforts to comply with the state’s procedural rule.” Id. at 753. To

establish “prejudice,” a petitioner must demonstrate actual, not possible, harm resulting

from the alleged violation. Murray v. Carrier, All U.S. 478, 494 (1986); see also United

States v. Frady, 456 U.S. 152, 170 (1982) (to show prejudice, a petitioner must

demonstrate that the alleged constitutional violation worked to the prisoner’s “actual and

substantial disadvantage, infecting his entire trial with error of constitutional

dimensions.”). To establish a “fundamental miscarriage of justice,” a petitioner must

“show that it is more likely than not that no reasonable juror would have found petitioner

guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 327 (1995).

IV.

Discussion

The Court will first discuss Petitioner’s general objections to the R&R’s

procedural default findings and then discuss Petitioner’s objections to the R&R’s analysis

of specific claims. i

A. Procedural Default

Petitioner argues that Respondents waived their procedural default arguments by

not raising them during pre-Answer briefing related to a motion to stay. (Doc. 74 at 3-4.)

Magistrate Judge Ferraro considered this argument and rejected it, finding that

Respondents were not required to raise their procedural default arguments at that time

and that the exhaustion requirement can only be expressly waived. (Doc. 65 at 9-10.)

Because Petitioner merely raises the same arguments considered and rejected by

the magistrate judge, de novo review is unnecessary. See Vega-Feliciano, 100 F. Supp.

3d at 116. Even applying de novo review, the Court finds that Magistrate Judge Ferraro

i The Court has reviewed for clear error all unobjected-to portions of Magistrate

Judge Ferraro’s R&R, and has found no clear error in those unobjected-to portions.

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Case 4:17-cv-00224-RM Document 86 Filed 03/30/21 Page 6 of 17

correctly rejected Petitioner’s waiver argument. Respondents appropriately raised their

arguments concerning exhaustion and procedural default in their first responsive

pleading—their Answer to Petitioner’s Amended Petition. See Morrison v. Mahoney, 399

F.3d 1042, 1046 (9th Cir. 2005) (“the defense of procedural default should be raised in

the first responsive pleading”); see also Fed. R. Civ. P. 7(a) (distinguishing “pleadings”

from “motions and other papers”). Furthermore, AEDPA provides that the exhaustion

requirement must be expressly waived, 28 U.S.C. § 2254(b)(3), and there is no express

waiver here. Petitioner’s waiver objection will be overruled.

Petitioner further objects to the R&R’s findings that several of his IAC claims are

procedurally defaulted because they were rejected in state court as untimely under

Arizona Rule of Criminal Procedure 32.4(a). (Doc. 74 at 4-6.) Petitioner argues that the

pre-2018 amendment version of Rule 32.4(a),2 in effect at the time he initiated all three of

his PCR proceedings, was not an adequate state procedural ground because it was not

firmly established and was insufficiently clear on the procedure for a pleading defendant

to assert a claim of ineffective assistance of PCR counsel. (Id.) Magistrate Judge Ferraro

considered and rejected this argument, finding that Arizona courts regularly follow Rule

32.4(a) and concluding that the rule and case law interpreting it were “sufficiently clear

as to what conduct was required to assert an IAC claim of first PCR counsel.” (Doc. 65 at

10-12.)

Because Petitioner merely raises the same arguments considered and rejected by

the magistrate judge, de novo review is unnecessary, but even applying de novo review,

the Court rejects Petitioner’s argument. “A state court’s invocation of a procedural rule to

deny a prisoner’s claims precludes federal review of the claims if, among other requisites,

the state procedural rule is a nonfederal ground adequate to support the judgment and the

rule is firmly established and consistently followed.” Martinez v. Ryan, 566 U.S. 1, 9

2 Rule 32.4 (a) provides deadlines for filing timely PCR notices, and before 2018 it stated,

“In a Rule 32 of-right proceeding, the notice must be filed within ninety days after the

entry of judgment and sentence or within thirty days after the issuance of the final order

or mandate by the appellate court in the petitioner’s first petition for post-conviction

relief proceeding.”

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Case 4:17-cv-00224-RM Document 86 Filed 03/30/21 Page 7 of 17

(2012). Arizona’s procedural bar on successive PCR petitions is an independent and

adequate state ground precluding federal habeas review of a claim, as is Arizona’s bar on

untimely PCR petitions, Id. at 10/ see also Beaty v. Stewart, 303 F.3d 975, 988 (9th Cir.

2002) (finding petitioner failed to show that “Arizona’s time bar is not adequate or

independent”); Loya v. Shinn, No. CV-19-02104-PHX-SRB, 2020 WL 5658976, at *5

(D. Ariz. Sept. 23, 2020). The 2018 amendment referenced by Petitioner did not

constitute a material change in Arizona’s procedural rules. This Court finds no basis to

overrule the R&R on this issue.

B. Ground One

In Petitioner’s of-right PCR proceeding, appointed counsel filed a “Notice of No

Colorable Claim,” stating that he was unable to find any ground for Rule 32 relief. (Doc.

51 at 78, 80-83.) The trial court allowed Petitioner to file a pro se PCR Petition (Doc. 51

at 85; see also Doc. 52 at 3-21) and later denied that pro se Petition (Doc. 52 at 111-13),

all without conducting an Anders3 review of the record. In Ground One of his Amended §

2254 Petition, Petitioner alleges that his equal protection and due process rights were

violated during his of-right PCR proceeding, and he was denied effective assistance of

counsel, because Anders safeguards were not followed. (Doc. 41 at 10-17.) Petitioner

raised this claim to the Arizona Court of Appeals in his Motion to Supplement his

Petition for Review of the denial of his third PCR Petition. {Id. at 10, 16; see also Doc.

41-10 at 30-31.) The Arizona Court of Appeals granted review of the denial of

Petitioner’s third PCR Petition but denied relief, finding that any claims regarding the

ineffectiveness of Petitioner’s first PCR counsel should have been raised in a second,

timely PCR proceeding. (Doc. 58 at 4 (citing Ariz. R. Crim. P. 32.4(a)(2)(C)).) With

respect to Petitioner’s Anders claim, the Court found—relying on Arizona v. Chavez, 407

P.3d 85 (Ariz. App. 2017), that Anders review is not required for pleading defendants.

{Id.)

The R&R finds that Petitioner exhausted Ground One by raising it in his third

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

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Case 4:17-cv-00224-RM Document 86 Filed 03/30/21 Page 8 of 17

PCR proceeding but that the claim is procedurally defaulted because the Arizona Court of

Appeals determined it was untimely under Rule 32.4(a)(2)(C) of the Arizona Rules of

Criminal Procedure. (Doc. 65 at 8-12.) The R&R also notes that the Arizona Court of

Appeals relied on Chavez in finding that Anders review is not required for pleading

defendants. {Id. at 8.) Petitioner objects that the R&R’s reliance on Chavez is contrary to

clearly established federal law. (Doc. 74 at 6-7; see also Doc. 76 at 1-3.) Petitioner

contends that Arizona’s procedures governing PCR proceedings and the provision of

counsel therein lead to “the constructive denial of counsel altogether” and do not comport

with the Fourteenth Amendment. (Doc. 74 at 7.)

A claim is procedurally defaulted when a state court applies an independent and

adequate state procedural bar, even if the state court alternatively addresses the claim on

the merits. Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); see also Zapata v. Vasquez,

788 F.3d 1106, 1111-12 (9th Cir. 2015). But a procedural default occurs only if the state

court “clearly and expressly” states that its judgment rests on a state procedural bar.”

Harris, 489 U.S. at 263 (internal quotation marks omitted). As discussed above, the

Arizona Court of Appeals found that Petitioner’s ineffective assistance of PCR counsel

claims were untimely before addressing his Anders claim on the merits. (Doc. 58 at 4.)

To the extent that Ground One asserts the ineffective assistance of PCR counsel, this

Court agrees with the R&R that the claim is procedurally defaulted. However, the

Anders claim asserted in Ground One is distinct from a claim alleging only the ineffective

assistance of PCR counsel. Cf Penson, 488 U.S. at 88 (noting differences between

Anders claim and ordinary IAC claim). There is no indication that the Arizona Court of

Appeals applied a procedural bar to Petitioner’s Anders claim; it addressed the claim only

on the merits. Accordingly, this Court rejects the R&R’s finding that Petitioner’s Anders

claim is procedurally defaulted.

In Anders v. California, the United States Supreme Court held that a court-

appointed criminal defense attorney who, on appeal of a criminal conviction, finds the

appeal meritless or frivolous, may request permission to withdraw but must file “a brief

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Case 4:17-cv-00224-RM Document 86 Filed 03/30/21 Page 9 of 17

referring to anything in the record that might arguably support the appeal.” 386 U.S. 738,

744 (1967). The court must conduct “a full examination of all the proceedings, to decide

whether the case is wholly frivolous,” before allowing the withdrawal of counsel. Id; see

also Penson v. Ohio, 488 U.S. 75, 80 (1988). If the court finds any non-frivolous issues,

“it must, prior to decision, afford the indigent the assistance of counsel to argue the

appeal.” Anders, 386 U.S. at 744. Anders protections apply to prevent “unconstitutional

discrimination against the poor” during proceedings in which a litigant has an

“established constitutional right to counsel.” Pennsylvania v. Finley, 481 U.S. 551, 554-

55 (1987). Anders safeguards do not apply to ordinary collateral review proceedings

because there is no constitutional right to counsel during those proceedings. Finley, 481

U.S. at 555-56. However, Anders protections are required during a defendant’s first

appeal as of right. Finley, 481 U.S. at 554-55.

In Arizona, a noncapital defendant “may not appeal from a judgment or sentence

that is entered into pursuant to a plea agreement.” A.R.S. § 13-4033(B). Instead, pleading

defendants may file a notice requesting post-conviction relief. Ariz. R. Crim. P. 17.1(e);

Ariz. R. Crim. P. 33.1. The initial PCR petition of a pleading defendant is referred to as

an “of-right” PCR petition, as it is the functional equivalent of a pleading defendant’s

first appeal as of right. See Summers v. Schriro, 481 F.3d 710, 714-17 (9th Cir. 2007).

Because of-right PCR proceedings are the functional equivalent of first appeals as of

right, a federal constitutional right to counsel exists during such proceedings, and Anders

safeguards are required. Pacheco v. Ryan, No. CV-15-02264-PHX-DGC, 2016 WL

7407242, at *8-10 (D. Ariz. Dec. 22, 2016); see also Penson, 488 U.S. at 79 (“the

Fourteenth Amendment guarantees a criminal appellant the right to counsel on a first

appeal as of right”). Nevertheless, notwithstanding pleading defendants’ constitutional

right to counsel in of-right PCR proceedings and in explicit disregard of Pacheco, the

Arizona Court of Appeals held in Chavez that Anders record-review is not required in of-

right PCR proceedings. 407 P.3d 85.

In the case at hand, the Arizona Court of Appeals’ reliance on Chavez for the

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proposition that Anders safeguards were not required during Petitioner’s of-right PCR

proceeding was an unreasonable application of clearly established federal law, as

determined by the United States Supreme Court in Anders and Finley. See Chavez v.

Ryan, No. CV-19-05424-PHX-DLR, 2021 WL 734595, at *2-3 (D. Ariz. Feb. 25, 2021);

Pacheco, 2016 WL 7407242, at *8-10. Accordingly, this Court will grant a conditional

writ of habeas corpus as to Ground One of Petitioner’s Amended Petition.

C. Ground Two

In Ground Two, Petitioner alleges that the Arizona Court of Appeals violated the

ex post facto and due process clauses of the Constitution by holding that his IAC of PCR

counsel claims were untimely under Arizona Rule of Criminal Procedure 32.4(a). (Doc.

41 at 18-28.) The R&R finds that Ground Two is not cognizable on federal habeas review

because it challenges the state courts’ application of a state procedural rule. (Doc. 65 at

12-13.) In his Objection, Petitioner again argues that the state courts’ application of

Arizona Rule of Criminal Procedure 32.4 violated the ex post facto and due process

clauses of the Constitution. (Doc. 74 at 7-8.)

Because Petitioner’s Objection merely raises the same arguments that were

already considered and rejected by the magistrate judge, de novo review is unnecessary,

but even applying de novo review, this Court agrees with Magistrate Judge Ferraro’s

analysis of Ground Two. A federal habeas court cannot “reexamine state-court

determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

An alleged error of state law is not a denial of due process and is not cognizable on

federal habeas corpus review. See id.; Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982))

(“We have long recognized that a mere error of state law is not a denial of due process.”)

(internal citation and quotation omitted). Petitioner’s Ground Two objection will be

overruled.

D. Ground Three

In Ground Three, Petitioner alleges prosecutorial misconduct and violation of his

Fifth and Fourteenth Amendment due process rights based on “the State[’]s unlawful[l]y

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induced plea of guilty by way of a sham prosecution.” (Doc. 41 at 29-35.) The basis of

this claim is Petitioner’s allegation that the prosecutor in his case withheld information

regarding the military’s purported intent to impose a consecutive sentence for offenses

Petitioner committed against the same minor victims. {Id.) Petitioner alleges that his plea

agreement raised the possibility that his military sentence would be concurrent, and that

he would not have accepted the plea agreement if he had known of an email indicating

the military was planning to impose a consecutive sentence. {Id. at 31-32.)4

Petitioner presented this claim of prosecutorial misconduct in his first PCR

Petition (Doc. 41-3 at 14-19; Doc. 52 at 9-14) and his Petition for Review of the trial

court’s denial of that Petition (Doc. 41-3 at 32-34), but he did not argue to the Arizona

Court of Appeals that he would not have pled guilty but for the alleged prosecutorial

misconduct. The Arizona Court of Appeals held that, by pleading guilty, Petitioner

“waived all non-jurisdictional defects save those related to the validity of his plea” and

that he had failed to explain how any alleged prosecutorial misconduct “influenced his

decision to plead guilty.” (Doc. 54 at 59-60.) The Court also noted that, to the extent

Petitioner had attempted to incorporate by reference his PCR Petition in his Petition for

Review, that procedure was not permitted by state rule. {Id. at 59.)

The R&R finds that Ground Three is procedurally defaulted because, by

attempting to incorporate the claim by reference in his Petition for Review, Petitioner

failed to present the claim to the Arizona Court of Appeals in a procedurally appropriate

manner. (Doc. 65 at 14.) The R&R further finds that Petitioner waived the due process

claim alleged in Ground Three when he pled guilty. {Id. at 14-15.) Petitioner objects to

the R&R’s finding that Petitioner waived this ground by pleading guilty, arguing that the

State’s “sham prosecution . . . was a breach of the plea.” (Doc. 74 at 8.) Petitioner further

argues that he has established an exception to the guilty plea waiver as set forth in

Blackledge v. Perry, 417 U.S. 21 (1974). (Doc. 74 at 8.) In response, Respondents assert

4 Petitioner’s plea agreement specified that his 25-year sentence “may be consecutive or

concurrent to the Sentence he will serve pursuant to his General Court-Martial, at the

discretion of the United States Army Commanding General.” (Doc. 51 at 20.)

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that Blackledge is inapplicable and that any claim regarding the State breaching the plea

agreement is procedurally defaulted because Petitioner did not raise it in his PCR

proceedings. (Doc. 84 at 10-11.)

Petitioner’s reliance on Blackledge is misplaced. “When a criminal defendant has

solemnly admitted in open court that he is in fact guilty of the offense with which he is

charged, he may not thereafter raise independent claims relating to the deprivation of

constitutional rights that occurred prior to the entry of the guilty plea,” but instead “may

only attack the voluntary and intelligent character of the guilty plea” itself. Tollett v.

Henderson, 411 U.S. 258, 267 (1973). In Blackledge, the Supreme Court found that

Tollett did not preclude a defendant who had pled guilty to a felony from asserting that

the “very initiation” of the felony proceedings—which were based on the same conduct

that had given rise to a prior misdemeanor conviction—denied him due process of law.

417 U.S. at 22-23. The “exception” set forth in Blackledge is inapplicable here; although

Petitioner alleges he faced charges in a military court martial for the same conduct at

issue in these proceedings, successive state and federal criminal proceedings do not

violate the double jeopardy clause. See Gamble v. United States, 139 S. Ct. 1960, 1964

(2019) (“Under th[e] ‘dual-sovereignty’ doctrine, a State may prosecute a defendant

under state law even if the Federal Government has prosecuted him for the same conduct

under a federal statute.”)

The Court recognizes that an alleged constitutional violation affecting the

voluntary and intelligent character of a guilty plea is not waived by that guilty plea,

Tollett, 411 U.S. at 267, and that Petitioner alleges in his § 2254 Petition that he would

not have pled guilty but for the prosecutor’s alleged misconduct. But Petitioner did not

make that allegation to the Arizona Court of Appeals. The new allegation materially and

substantially changes the nature of Ground Three and is unexhausted. See Dickens v.

Ryan, 740 F.3d 1302, 1318-19 (9th Cir. 2014) (“A claim has not been fairly presented in

state court if new factual allegations” fundamentally alter it or place it in a significantly

stronger posture). Petitioner’s argument that the State breached his plea agreement is also

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unexhausted and procedurally defaulted. The Court will adopt the R&R’s conclusion that

Petitioner is not entitled to relief on Ground Three.

E. Ground Four

In Ground Four, Petitioner alleges that his prosecution by both the State and

military violated his right to be free from double jeopardy. (Doc. 41 at 36-45.) Petitioner

raised this claim in his first PCR Petition (Doc. 53 at 6-7), and the R&R finds it to be

properly exhausted but without merit under Gamble, 139 S. Ct. 1960. (Doc. 65 at 15-16,

24-26.) Petitioner objects to the R&R’s reliance on Gamble, essentially arguing that

Gamble was incorrectly decided. (Doc. 74 at 9, 14; Doc. 76 at 3-4.)

Habeas relief only lies if a state adjudication “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.” 28 U.S.C. § 2254(d)(1).

AEDPA certainly does not require state courts to question the correctness of binding

Supreme Court precedent. The Court finds no basis to overrule the R&R on this issue,

and Petitioner’s Ground Four objection will be overruled.

F. Ground Eight

In Ground Eight, Petitioner alleges that his Fifth and Fourteenth Amendment

rights were violated by the State’s withholding of medical reports concerning the minor

victims. (Doc. 41-1 at 20-30.) Petitioner further alleges that, if not for the withholding of

the medical reports, the grand jury would not have indicted him and he would not have

pled guilty. (Id. at 20, 26.) Petitioner also complains about the state courts’ resolution of

his Arizona Rule of Criminal Procedure 32.12(f) motion for access to DNA, medical, and

forensic evidence/reports. (Id. at 22-23, 27-30.)

The R&R interprets Ground Eight as alleging that the state courts erred in ruling

on Petitioner’s Rule 32.12(f) DNA motion, and finds that the claim is not cognizable on

federal habeas review because it merely asserts an error of state law. (Doc. 65 at 17-18.)

Petitioner objects to the R&R’s conclusion that Claim Eight does not state a claim

cognizable on federal habeas review, and he appears to argue that the state courts violated

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principles of “fundamental fairness.” (Doc. 74 at 14.) To support his Objection, Petitioner

cites District Attorney’s Office for the Third Judicial District v. Osborne—a case in

which the United States Supreme Court found that a state’s post-conviction proceedings

were consistent with principles of fundamental fairness. 557 U.S. 52, 70 (2009).

To the extent that Ground Eight challenges the state courts’ resolution of

Petitioner’s Rule 32.12(f) DNA motion, nothing in Osborne or Petitioner’s Objection

supports Petitioner’s position that Ground Eight is cognizable on federal habeas review.

To the extent that Ground Eight alleges that the State withheld exculpatory evidence in

violation of Brady v. Maryland, 373 U.S. 83 (1963), that claim fails based on this Court’s

prior finding that the medical records at issue are not exculpatory. (See Doc. 71.)5

Petitioner’s Ground Eight objection will be overruled.

G. Ground Eleven

In Ground Eleven, Petitioner alleges that the sentencing court’s imposition of

sentencing enhancements, without a jury determination of enhancement factors, violated

his rights under the Sixth and Fourteenth Amendments. (Doc. 41-2 at 1-7.) The R&R

finds that Petitioner waived this claim by pleading guilty, and that the claim is factually

inaccurate. (Doc. 65 at 20-21.) Petitioner objects to the R&R’s conclusion that Ground

Eleven is “factually inaccurate.” (Doc. 74 at 15-16.) Petitioner contends that his plea

agreement did not state that he would be sentenced under A.R.S. § 13-705, nor was he

aware that he was pleading guilty to a Dangerous Crime Against Children (“DCAC”)

offense. (Doc. 74 at 15-16.) Petitioner thus argues that the sentencing court erred by

sentencing him to a DCAC and by applying enhancement factors at his sentencing

hearing on April 3, 2014. (Id. at 16.)

5 Petitioner previously sought to expand the record to include the medical records at issue

in Ground Eight, and he sought a stay and abeyance based on his filing of a fourth state

PCR proceeding related to the medical records. (Docs. 49.) This Court denied Petitioner’s

Motion to Expand the Record and Motion for Stay and Abeyance. (Doc. 71.) The Court

recognized that Petitioner alleges he would not have pled guilty if he had known of the

medical records, and that his guilty plea does not preclude him from raising claims

attacking the voluntary and intelligent nature of that plea; however, the Court found that a

stay and expansion of the record would be futile because the medical records are not

exculpatory. (Id. at 6-7.)

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The Court agrees with the R&R that this claim is belied by the terms of

Petitioner’s plea agreement and the transcripts of Petitioner’s change-of-plea and

sentencing hearings. Petitioner’s plea agreement specified that Sanchez was pleading

guilty to violating A.R.S. § 13-1405 and A.R.S. § 13-705(B). (Doc. 51 at 18.) The

agreement specified the sentencing range for a first DCAC offense under § 13-705(B)

and stated that Sanchez would be sentenced to 25 years. (Id. at 19-20.) Furthermore,

Petitioner agreed as part of the plea that the trial court would find any aggravating or

mitigating facts for sentencing purposes. (Id. at 21-22.) As the factual basis of the plea,

Petitioner admitted that he had sexual intercourse with an 11-year-old victim and

attempted sexual intercourse with a 7-year-old victim. (Id. at 47-48.) The state trial court

reviewed the plea agreement with Petitioner, twice stating that he was pleading guilty to a

DCAC. (Id. at 53-54.) This Court finds no basis to overrule the R&R on this issue, and

Petitioner’s Ground Eleven objection will be overruled.

H. Ground Twelve

In Ground Twelve, Petitioner alleges that trial counsel rendered ineffective

assistance by failing to adequately communicate the terms of his plea agreement to him.

(Doc. 41-2 at 8-16.) Petitioner raised this claim in his first PCR Petition (Doc. 52 at 19-

21) and in his petition for review of the denial of that Petition (Doc. 53 at 5-6). The

Arizona Court of Appeals rejected it because Petitioner failed to “identify what

information counsel could have provided him that would have prompted him to reject the

state’s plea offer,” and therefore failed to “demonstrate there was a reasonable probability

that he would have rejected the state’s plea offer but for his counsel’s conduct.” (Doc. 54

at 59-60.)

The R&R finds that this claim is properly exhausted but rejects the claim on the

merits because the state courts reasonably found that Petitioner failed to demonstrate

prejudice under the two-part Strickland standard. (Doc. 65 at 21, 27-28.) In reaching this

conclusion, the R&R notes that Petitioner admitted his guilt at his change-of-plea hearing

and that he concedes he was aware that he would have faced a sentence of up to 200

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years’ imprisonment if convicted on charges that the State dismissed as part of his plea

agreement. (Id. at 27-28.)

Petitioner objects, arguing that “his showing of prejudice [stemming from

ineffective assistance of counsel] was in the unincorporated portions that the [Arizona

Court of Appeals] found to not be permitted by rule.” (Doc. 74 at 16.) In other words,

Petitioner contests the state courts’ application of a state procedural rule forbidding

incorporation by reference. (See Doc. 84 at 13-14; Doc. 41-2 at 8-16.) However, to

properly exhaustion a federal claim, a prisoner must present the claim to the state court in

a procedurally appropriate manner. Cf Baldwin v. Reese, 541 U.S. 27, 31-32 (2004)

(state courts are not required to “read beyond a petition or a brief’). The Court finds no

basis to overrule the R&R on this issue, and Petitioner’s Ground Twelve objection will be

overruled.

Accordingly,

IT IS ORDERED that Petitioner’s Objection (Doc. 74) is partially sustained

and partially overruled, as set forth above.

IT IS FURTHER ORDERED that the Report and Recommendation (Doc. 65) is

partially rejected and partially accepted, as set forth above.

IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas

Corpus (Doc. 41) is conditionally granted as to the Anders claim in Ground One, and

otherwise denied. Petitioner shall be released from custody unless, within ninety (90)

days of this Order, Petitioner is permitted to file a new of-right Rule 33 PCR proceeding,

including the filing of either a merits brief by counsel or a substantive brief consistent

with Anders v. California, 386 U.S. 738 (1967), and an independent review of the record

by the court.

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

conditionally granting the Amended Petition (Doc. 41) as to Ground One and close this

case.

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IT IS FURTHER ORDERED that, pursuant to Rule 11 of the Rules Governing

Section 2254 Cases, the Court declines to issue a certificate of appealability with respect

to its denial of relief on all other grounds of the Amended Petition, because reasonable

jurists would not find the Court’s ruling on those grounds debatable. See Slack v.

McDaniel, 529 U.S. 473, 478, 484 (2000).

Dated this 29th day of March, 2021.

Honoraple Ros

United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Michael Isidoro Sanchez,

Petitioner,

Charles L Ryan, et al.,

No. CV-17-00224-TUC-RM (DTF)

REPORT AND RECOMMENDATION

Respondents.

Petitioner Michael Isodoro Sanchez (Sanchez or Petitioner), confined in the Arizona

State Prison Complex, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28

U.S.C. § 2254 (Petition) and later filed an amended petition. (Doc. 1,41.) Before the Court

are the amended petition, Respondents’ Answer to Petition for Writ of Habeas Corpus

(Answer), Petitioner’s reply (Docs. 41, 50, 60.) This matter was referred to United States

Magistrate Judge D. Thomas Ferraro for Report and Recommendation. (Doc. 12.)

As more fully set forth below, the Magistrate Judge recommends that the district

court, after its independent review, dismiss the amended petition.

BACKGROUND

Trial Court Proceedings

In June 2013, a grand jury indicated Petitioner on multiple counts of sexual conduct

with a minor against two victims, ages 11 and 7. (Doc. 51 at 3-5.) The state alleged all

offenses were dangerous crimes against children for sentence enhancement purposes and

alleged victim harm as a sentence-aggravating factor. (Doc. 51 at 6-11.) On March 6,2014,

Case 4:17-cv-00224-RM Document 65 Filed 05/21/20 Page 2 of 28

Petitioner pleaded guilty to sexual conduct with one minor victim and attempted sexual

conduct with the other minor victim in exchange for the dismissal of the other charges. Id.

at 13-16, 18-4. During the change-of-plea hearing, the trial judge reviewed the terms of the

plea agreement and the consequences of pleading guilty with Petitioner. Id. at 38-49. The

trial court specifically advised Petitioner that he was “to be sentenced to a partially

aggravated term of 25 years” for count one and that he would be on lifetime probation for

the attempt charge. Id. at 43. On April 3, 2014, Petitioner was sentenced accordingly. Id.

at 65-66.

First Post-Conviction Relief Proceedings

On May 21, 2014, Petitioner timely filed a notice of post-conviction relief (PCR) as

set forth in Rule 32.4(a) of the Arizona Rules of Criminal Procedure and was appointed

counsel. Id. at 74-76, 78. Counsel subsequently filed a notice stating that after review he

has been “unable to find any ground for Rule 32 relief,” and requested that Petitioner be

allowed additional time in which to file a pro se petition. Id. at 80. In his subsequently filed

pro se petition, Petitioner asserted claims of prosecutorial misconduct, newly discovered

evidence, unlawful sentence, and ineffective assistance of counsel (IAC). (Doc. 52 at 9-

21.) Petitioner also alleged a violation of his double jeopardy right. Id. at 14. On August

18, 2015, the PCR court denied relief. Id. at 111-13.

On September 18, 2015, Petitioner sought review in the Arizona Court of Appeals.

(Doc. 53 at 3-65; Doc. 54 at 3-55.) On December 22, 2015, the court of appeals issued its

memorandum decision granting review but denying relief. (Doc. 54 at 57-60.) The court of

appeals determined:

Sanchez pled guilty to sexual conduct with a minor under the age of

fifteen and attempted sexual conduct with a minor under the age of fifteen.

Consistent with a stipulation in the plea agreement, the trial court sentenced

him to a twenty-five year prison term on the first count to be followed by

lifetime probation on the second.

In court-martial proceedings conducted by the United States

Department of Defense, Sanchez had additionally been charged with and

pled guilty to numerous sexual offenses involving children. The conduct

resulting in those admissions occurred on various military bases, including a

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base in Arizona. The plea agreement provided that Sanchez’s sentence for

sexual conduct with a minor ‘may be consecutive or concurrent to the

Sentence be will serve pursuant to his General Court-Martial, at the

discretion of the United States Army Commanding General’ At sentencing,

the trial court authorized the Cochise County Sheriff‘to deliver [Sanchez] to

the custody of the [Arizona] Department of Corrections,’ and authorized that

department to ‘carry out [Sanchez’s] term of imprisonment.’

•

(Doc. 54 at 58,1fi[l-2.) On May 24, 2016, the Arizona Supreme Court denied review. Id. at

62.

Second PCR Proceedings

On December 7, 2015, Petitioner filed a PCR motion requesting DNA testing

pursuant to Rule 32.12 of the Arizona Rules of Criminal Procedure. Id. at 68-72. Petitioner

was appointed counsel. Id. at 74. Counsel subsequently filed a notice stating that she had

“reviewed the transcripts and trial file and [could] find no colorable claims” for PCR relief.

Id. at 76. Petitioner was given additional time to file a pro se PCR petition. Id. at 81.

Petitioner filed a motion asking the PCR court to compel the prosecutor to “provide access

to DNA, medical, and forensic evidence/reports.” Id. at 84-100. Petitioner’s motion was

denied. (Doc. 55 at 3.)

On October 20, 2016, Petitioner filed a second pro se PCR petition in which he

again asserted claims of prosecutorial misconduct, IAC and newly discovered evidence.

Id. at 5-39. On January 10, 2017, the PCR court determined Petitioner’s claims were

precluded and summarily dismissed his second PCR petition. It also denied his Rule 32.12

motion. Id. at 41.

Petitioner filed a motion for rehearing under Rule 32.9(a) of the Arizona Rules of

Criminal Procedure. Id. at 43-47. The PCR court ordered a response. Id. at 49. After a full

briefing, the PCR court denied Petitioner’s motion for a rehearing. Id. at 51-52, 54-93, 95.

On April 17, 2017, Petitioner sought review of the PCR court’s denial of his second

PCR petition, Rule 32.12 motion and motion for rehearing in the Arizona Court of Appeals.

(Doc. 56 at 3-63.) The court of appeals granted review but denied relief. Id. at 65-69. The

Arizona Supreme Court denied review. Id. at 87.

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Case 4:17-cv-00224-RM Document 65 Filed 05/21/20 Page 4 of 28

Third PCR Proceedings

On August 10, 2017, Petitioner filed another notice of PCR (his third) wherein he

asserted claims against both of his previous PCR attorneys. Id. at 92-99. Petitioner was

appointed an attorney (his third). Petitioner’s counsel subsequently filed a notice stating

that she had been “unable to find any colorable claims” for Rule 32 relief and requested

additional time for Petitioner to file a pro se petition. Id. at 101, 103-106. The PCR court

granted counsel’s request and ordered her to remain as advisory counsel. Id. at 108-109.

Petitioner requested new counsel. (Doc. 57 at 3-19.) Petitioner’s request was denied,

and he was given additional time to file his pro se petition. Id. at 21. Petitioner sought

another extension of time in which to file a pro se petition which prompted the PCR court

to review Petitioner’s PCR notice and case file. Id. at 23-24. The PCR court determined

that Petitioner “cannot show that his first Rule 32 counsel was ineffective because there is

nothing in the record to support his assertion, and the [cjourt finds that that claim is without

merit and that no purpose would be served by any further proceedings^]” The PCR court

dismissed the proceedings. Id.

On August 1, 2018, Petitioner sought review of this ruling in the Arizona Court of

Appeals. Id. at 26-84. On October 12, 2018, the court of appeals granted review but denied

relief. (Doc. 58 at 3-5.) Petitioner’s subsequent motion for reconsideration was denied. Id.

at 7-22, 24. On April 22, 2019, the Arizona Supreme Court denied review. Id. at 27.

Federal Habeas Corpus Proceedings

On May 16, 2017, Petitioner filed his petition for writ of habeas corpus. (Doc. 1.)

The matter was stayed twice pending resolution of Petitioner’s state court PCR

proceedings. (Docs. 16, 29.) The second stay was lifted on May 17, 2019. (Doc. 38.) On

June 5,2019, Petitioner’s motion to file an amended petition was granted, and his amended

petition was filed. (Docs. 36, 40, 41.) The amended petition alleges nineteen grounds for

relief. (Doc. 41.)

As more fully set forth below, all but two and a portion of one of the claims alleged

in the amended petition are either precluded by Petitioner’s guilty plea, procedurally

defaulted without excuse or non-cognizable on federal habeas review. The exhausted

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claims are without merit.

TIMELINESS

Because the petition was filed after April 24,1996, the Anti-Terrorism and Effective

Death Penalty Act (AEDPA) governs. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th

Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)). The AEDPA’s one-

year statute of limitations applies. See 28 U.S.C. § 2244(d)(1). See Furman v. Wood, 190

F.3d 1002, 1004 (9th Cir. 1999). The limitations period begins to run on the date when “the

judgment became final by the conclusion of direct review or the expiration of the time for

seeking such review.” 28 U.S.C. § 2244(d)(1)(A).

On May 24, 2016, the Arizona Supreme Court denied review of the Arizona Court

of Appeals’ decision upholding the trial court’s dismissal of Petitioner’s first PCR petition.

(Doc. 54 at 62.) The habeas petition was filed on May 16, 2017. (Doc. 1.) The amended

petition was filed on June 5,2019. (Doc. 41.) The petition was timely filed but the amended

petition was filed outside of the one-year limitation period set forth in the AEDPA and is

untimely.

An amended habeas petition relates back to the date of the filing of the original

petition when the “original and amended petitions state claims that are tied to a common

core of operative facts.” Mayle v. Felix, 545 U.S. 644, 664 (2005). An amended petition

“does not relate back [...] when it asserts a new ground for relief supported by facts that

differ in both time and type from those the original pleading set forth.” Id. at 661-62.

The district court twice stayed this matter pending the conclusion of Petitioner’s

state court PCR proceedings. Respondents did not object to Petitioner’s amended petition.

Petitioner’s claims in both the petition and his amended petition relate to his guilty plea,

the effectiveness of his several counsel and the state courts’ adjudication of his PCR

petitions. This Court determines that the petition and the amended petition state claims that

are tied to a common core of operative facts.

This Court will treat the amended petition as relating back to the timely filed original

petition.

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EXHAUSTION/PROCEDURAL DEFAULT

A federal court may only consider a petitioner’s application for a writ of habeas

corpus if “the applicant has exhausted the remedies available in the courts of the State.”

28 U.S.C. § 2254(b)(1)(A); see Coleman v. Thompson, 501 U.S. 722, 731 (1991); Wooten

v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008). Proper exhaustion requires a petitioner

to fairly present his federal claims at the trial level and to “invok[e] one complete round of

the State’s established appellate review process,” presenting the same federal claim to each

court in a procedurally appropriate manner. O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999). In Arizona, a prisoner does not exhaust a claim for federal review in a non-capital

case unless he has presented it to the Arizona Court of Appeals. See Castillo v. McFadden,

399 F.3d 993, 998 & n.3 (9th Cir. 2005) (citing Swoopes v. Sublett, 196 F.3d 1008, 1010—

11 (9th Cir. 1999)).

A claim is only “fairly present[ed]” when a petitioner “clearly state[s] the federal

basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d

322, 327 (9th Cir. 2011); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If state

courts are to be given the opportunity to correct alleged violations of prisoners’ federal

rights, they must surely be alerted to the fact that the prisoners are asserting claims under

the United States Constitution.”). “[T]he petitioner must make the federal basis of the claim

explicit either by citing federal law or the decisions of federal courts, even if the federal

basis is ‘self-evident,’ ... or the underlying claim would be decided under state law on the

same considerations that would control resolution of the claim on federal grounds.” Lyons

v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (emphasis added; internal citations

omitted), modified by 247 F.3d 904 (9th Cir. 2001).

A corollary to the exhaustion requirement, the “procedural default doctrine” - which

limits a petitioner from proceeding in federal court where his claim is procedurally barred

in state court - “has its roots in the general principle that federal courts will not disturb state

court judgments based on adequate and independent state law procedural grounds.” Dretke

v. Haley, 541 U.S. 386, 392 (2004); see also Ylstv. Nunnemaker, 501 U.S. 797, 801 (1991)

(“When a state-law default prevents the state court from reaching the merits of a federal

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Case 4:17-cv-00224-RM Document 65 Filed 05/21/20 Page 7 of 28

claim, that claim can ordinarily not be reviewed in federal court.”).

There are two types of procedural bars, “express and implied.” Robinson v. Schriro,

595 F.3d 1086, 1100 (9th Cir. 2010). A claim is technically exhausted, but procedurally

defaulted, when a petitioner attempted to raise it in state court and the state court expressly

applied a procedural bar resting on an independent and adequate state law ground to avoid

considering the merits of the claim. See Nunnemaker, 501 U.S. at 802-05; see also

Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005) (stating procedural default

“applies to bar federal habeas review when the state court has declined to address the

petitioner’s federal claims because he failed to meet state procedural requirements”)

(internal quotation omitted). In determining whether the state courts have imposed a

procedural bar, the district court reviews the “last reasoned opinion” of the state courts.

Nunnemaker, 501 U.S. at 803; Lambright v. Stewart, 241 F.3d 1201, 1205 (9th Cir. 2001).

A claim is also technically exhausted, but implicitly procedurally defaulted, when a

petitioner has not raised it in state court, but a return to state court to exhaust it would be

futile considering state procedural rules. See Boerckel, 526 U.S. at 848 (finding claims

procedurally defaulted because habeas petitioner was time-barred from presenting his

claims in state court); Coleman, 501 U.S. at 735 n.l (noting that claims are barred from

habeas review when not first raised before state courts and those courts “would now find

the claims procedurally barred”).

The district court may review a procedurally defaulted claim only if the petitioner

alleges and proves cause and prejudice, or a fundamental miscarriage of justice. See

Coleman, 501 U.S. at 750; Cooper, 641 F.3d at 327. To establish “cause,” a petitioner must

demonstrate that “some objective factor external to the defense impeded [petitionerj’s

efforts to comply with the State’s procedural rule.” Coleman, 501 U.S. at 753 (internal

quotation omitted). To show “prejudice,” a petitioner must demonstrate that the alleged

constitutional violation worked to the prisoner’s “actual and substantial disadvantage,

infecting his entire trial with error of constitutional dimensions.” United States v. Frady,

456 U.S. 152, 170 (1982) (emphasis in original); see also Stokley v. Ryan, 705 F.3d 401,

403 (9th Cir. 2012); White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989). And, to prove a

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“fundamental miscarriage of justice,” a prisoner must establish that, in light of new

evidence, “it is more likely than not that no reasonable juror would have convicted him.”

Schlup, 513 U.S. at 327.

Ground I - Due Process/Equal Protection

Petitioner’s claim in Ground I is that his due process and equal protection rights

were violated during his of-right PCR proceeding because “no Anders or comparable

safeguard was followed.” (Doc. 41 at 10.) Petitioner contends this denied him the right to

effective assistance of counsel. Id. Petitioner did not raise this claim until his third PCR

petition. Id.

The trial court summarily dismissed his successive notice of PCR relief. (Doc. 58

at 3, Tfl.) Petitioner appealed and the Arizona Court of Appeals determined all of

Petitioner’s IAC claims were precluded as untimely under Rule 32.4(a)(2)(C) of the

Arizona Rules of Criminal Procedure. Id. at 4, ffl|6-8. The court of appeals also determined

that Petitioner’s claim under Anders v. California, 386 U.S. 738 (1967), was not cognizable

under Arizona state law. Id. at ^7. The court of appeals, relying on State v. Chavez, 243

Ariz. 313, ^|1 (App. 2017), held that Anders review is “not required for pleading

defendants.” Id.

Petitioner did not present his claim alleged in Ground I until his third PCR

proceeding. The Arizona Court of Appeals determined that all of Petitioner’s IAC claims

were precluded as untimely under Rule 32.4 of the Arizona Rules of Criminal Procedure.

Accordingly, this Court determines that Petitioner’s claim in Ground I is technically

exhausted and procedurally defaulted. See Coleman, 501 U.S. at 749-50 (federal habeas

review based by state court’s dismissal of state collateral appeal based on untimeliness

under state procedural rule); Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003)

(“[Sjtate prisoners cannot subvert the exhaustion requirement by presenting their claims to

the state court in a procedurally deficient manner.”).

Petitioner argues in reply that Respondents waived the affirmative defense of

procedural default. (Doc. 60 at 3.) Petitioner asserts:

Respondents intelligently chose to waive the affirmative defense of

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procedural default in regard to the abrogated Rule 32.4(a), when they chose

not to defend the district court’s sua sponte invocation of the procedural

default defense.

Id. Petitioner contends Respondents should have presented “their position regarding the

amended Rule 32.4(a)(2)(C) and the abrogated Rule 32.4(a) when they were ordered by

the district court ... to respond to Petitioner’s motion for reconsideration.” Id. at 4.

(emphasis omitted.)

Earlier in this habeas proceeding, Petitioner filed a motion for reconsideration of the

district court’s decision denying Petitioner’s request for a stay. (Doc. 26.) As this Court

understands Petitioner’s argument, Petitioner believes Respondents were required to allege

their defense of procedural default when the district court ordered Respondents to file a

response to his motion for reconsideration. (Docs. 27, 28.) Since Respondents did not raise

their affirmative defenses in their response to the motion for reconsideration, Petitioner

claims they have waived those defenses.

“Under the Federal Rules of Civil Procedure, a party, with limited exceptions, is

required to raise every defense in its first responsive pleading, and defenses not so raised

are deemed waived.” Morrison v. Mahoney, 399 F.3d 1042, 1046 (9th Cir. 2005) (citations

omitted.) “Rule 7(a) defines ‘pleadings’ as a complaint and answer; a reply to a

counterclaim; an answer to a cross-claim; and a third-party complaint and answer.” Id.

Anything else is a motion or paper.” Id. See also, 28 U.S.C. § 2254(a)(3) (“A State shall

not be deemed to have waived the exhaustion requirement or be estopped from reliance

upon the requirement unless the State, through counsel, expressly waives the

requirement.”)

Petitioner’s argument that waiver occurred when Respondents failed to raise their

affirmative defense of procedural default in their response to his motion for reconsideration

is without merit. Respondents were not required to raise any affirmative defenses at that

time. See, Morrison, supra. Moreover, a waiver of the exhaustion requirement by

Respondents must be expressly made. See, 28 U.S.C. § 2254(a)(3). This Court rejects

Petitioner’s argument that Respondents waived their affirmative defense of exhaustion and

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procedural default.

Petitioner argues that his claim in Ground I is not procedurally defaulted because

“IAC of first Rule 32 counsel was raised to the Arizona Court of Appeals to establish cause

for this ground[.]” (Doc. 41 at 6.) While counsel’s ineffectiveness in failing to properly

preserve a claim for review in the state courts can constitute cause to excuse a procedural

default, Edwards v. Carpenter, 529 U.S. 446,451 (2000), “a claim of ineffective assistance

[must] be presented to the state courts as an independent claim before it may be used to

establish cause for a procedural default. ” Murray v. Carrier, All U.S. 478, 489 (1986). It

is undisputed that Petitioner failed to timely present his ineffective assistance of counsel

claims in the state court. (Doc. 58 at 4, ^|6.) The court of appeals determined:

But the opportunity for [Petitioner] to raise a claim of ineffective assistance

of post-conviction counsel has passed - he was required to raise that claim in

a second, timely proceeding. Ariz. R. Crim. P. 32.4(a)(2)(C). And we find no

error in the court’s decision to dismiss the proceeding when [Petitioner]

failed to timely file a petition.

Id.

In reply, Petitioner argues that Rule 32.4(a)(2)(C) of the Arizona Rules of Criminal

Procedure is an inadequate state procedural ground because Rule 32.4(a)(2)(C) was not

firmly established at the time of Petitioner’s default. (Doc. 60 at 7.) Petitioner argues that

Rule 32.4(a)(2)(C) was not in effect at the time he was required to file his state court PCR

petition alleging IAC but, rather, abrogated Rule 32.4(a) was in effect. Id. at 8. Petitioner

argues that amended Rule 32.4(a)(2)(C) “is a material change from the abrogated Rule

32.4(a)” and that the abrogated Rule 32.4(a) did not provide him with notice “as to what

‘of-right’ claim triggered the successive ‘of-right’ Rule 32 proceeding at the time of the

purported time of default.” Id. at 9. Petitioner contends “[t]he plain language of the

abrogated Rule 32.4(a) was vague and ambiguous as to what claim the successive Rule 32

was for.” Id.

“To qualify as an ‘adequate’ procedural ground,” capable of barring federal habeas

review, “a state rule must be ‘firmly established and regularly followed.’” Johnson v. Lee,

136 S.Ct. 1802, 1805 (2016) (quoting Walker v. Martin, 562 U.S. 307, 316 (2011)). “A

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State’s procedural rules are of vital importance to the orderly administration of its criminal

courts; when a federal court permits them to be readily evaded, it undermines the criminal

justice system.” Johnson, 136 S.Ct. at 1807 (quoting Lambrix v. Singletary, 520 U.S. 447,

525 (1997)).

In State v. Petty, 238 P.3d 637 (Ariz. App. 2010), relied upon by Petitioner the court

of appeals recognized that:

[F]or a pleading defendant, Rule 32 is ‘the only means available for

exercising the [defendant’s] constitutional right to appellate review.’” (citing

Montgomery v. Sheldon, 181 Ariz. 256, 889 P.2d 614, 616, supp. op. 182

Ariz. 118, 893 P.2d 1281 (Ariz. 1995).) “Therefore, a pleading defendant...

is constitutionally entitled to the effective assistance of counsel on his first

[of-right] petition for post-conviction relief, the counterpart of a direct

appeal.” Id. (quoting State v. Pruett, 185 Ariz. 128, 912 P.2d 1357, 1360

(Ariz. App. 1995).) “The pleading defendant ‘must be afforded an

opportunity to assert a claim regarding the effectiveness of the attorney

representing him [in] the first petition for post-conviction relief, ... [and] the

obvious method is by means of a second petition.’ (citing Pruett, 912 P.2d at

1360; cf. State v. Bennett, 146 P.3d 63, 67 (2006).)

238 P.3d at 640. As of 2010, the date of the decision in Petty, pleading defendants in

Arizona were on notice that to assert an IAC claim of Rule 32 counsel, the I AC claim must

be raised in a second PCR petition. See also, Pruitt, 912 P.2d at 1360 (“A pleading

defendant’s first petition for post-conviction relief is a ‘direct appeal’ for purposes of time

limits of rule governing filing of motions for post-conviction relief; therefore, a second

notice of post-conviction relief for a claim of ineffectiveness of previous post-conviction

counsel is timely if filed within 30 days of order and mandate affirming trial court’s denial

of first petition for post-conviction relief.”).

Although in Petitioner’s case the court of appeals relied upon Rule 32.4(a)(2)(C) in

affirming the trial court’s dismissal of his second PCR petition, Rule 32.4(a)(2)(C) was not

a newly adopted rule as Petitioner argues. At the time of Petitioner’s default, Rule 32.4(a)

and case law interpreting Rule 32.4(a) was sufficiently clear as to what conduct was

required to assert an IAC claim of first PCR counsel This Court concludes that Rule 32.4(a)

adequately alerted Petitioner to the requirement that he raise any claim of IAC of his first

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PCR counsel in a timely successive PCR petition. Rule 32(a) was regularly followed by

the Arizona courts. See Pruitt, supra; Perry, supra. Petitioner’s argument that the court of

appeals relied upon an inadequate state procedural ground in affirming the trial court’s

dismissal of his second PCR proceeding is without merit.

This Court rejects Petitioner’s argument that he can establish cause to excuse the

procedural default of the claim alleged in Ground I.

Petitioner argues that he has established prejudice because his “federal claims are

all now subject to procedural default, to include his IAC of first Rule 32 counsel claim.”

(Doc. 60 at 13.) Petitioner argues, “[t]he inadequacy of the abrogated Rule 32.4(a) has

worked to Petitioner’s actual and substantial disadvantage infecting the entire proceeding

with constitutional error.” Id. Petitioner’s argument is boiler plate language and insufficient

to establish prejudice.

Because Petitioner cannot establish both cause and prejudice to excuse his

procedural default, this Court determines that the claim alleged in Ground I is procedurally

defaulted without excuse and barred from federal habeas review.

Ground II - Due Process and Ex Post Facto Violations

In Ground II, Petitioner alleges violations of his Fourteenth Amendment due process

and ex post facto rights based on the Arizona Court of Appeals having allegedly “arbitrarily

and retroactively applied a new procedural rule of untimeliness to an of-right post

conviction review proceeding.” (Doc. 41 at 18.) Petitioner takes issue with the state courts’

application of Rule 32 of the Arizona Rules of Criminal Procedure to his case. Id. at 2028; Doc. 60 at 21-22.

As pointed out by Respondents, federal habeas corpus is available only on behalf of

a person in custody in violation of the U.S. Constitution or the law or treaties of the United

States. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 5-6 (2010) (per curiam);

Estelle v. McGuire, 502 U.S. 62, 68 (1991). “A federal court may not issue the writ on the

basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984).

Furthermore, alleged errors of state law cannot be repackaged as federal errors

simply by citing the due process clause. Poland v. Stewart, 169 F.3d 573, 584 (9th Cir.

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1999). See also, Swarthout v. Cooke, 562 U.S. 216, 222 (2001) (“[W]e have long

recognized that “a ‘mere error of state law’ is not a denial of due process.” (quoting Engle

v. Isaac, 456 U.S. 107, 121 n.21 (1982))). A state court’s interpretation of state law “binds

a federal court sitting in habeas corpus.” Bradshaw v Richey, 546 U.S. 74, 76 (2005). „

Here, Petitioner has attempted to assert a federal claim by citing the due process

clause when Petitioner’s claim is that the state courts improperly “invoked the amended

Rule 32.4(a)(2)(C)” in denying his successive requests for PCR relief. See, Doc. 41 at 24

(“The Az CAP Division Two (sic) made an unreasonable determination of fact and law

when they applied the amended A.R.Cr.P. 32.4(a)(2)(A) and A.R.Cr.P. 32.4(a)(2)(C) as a

procedural bar of untimeliness to deny relief in Petitioner’s PFR and excuse the superior

courts (sic) errors.”). See also, Doc. 60 at 21. For the reasons stated above, this Court has

determined that the Arizona courts relied upon an adequate independent state law ground

in denying Petitioner’s successive PCR proceedings See, pp. 10-12, supra. This Court

determines that Petitioner’s claim in Ground II does not allege a federal claim but rather is

a claim based on the Arizona state courts’ application of a state procedural rule.

The claim alleged in Ground II does not state a cognizable claim for federal habeas

relief.

Ground TTT - Due Process Violation. Alleged Prosecutorial Misconduct

Petitioner styles his claim in Ground III as a violation of his Fifth and Fourteenth

Amendment due process rights “by the State’s unlawfully induced plea of guilty by way

of a sham prosecution.” (Doc. 41 at 29.) Petitioner alleges the prosecutor withheld

information regarding the military’s purported intent to impose a consecutive sentence for

the offenses he committed against the same victims. Id. at 34.

Petitioner presented this claim in his first PCR proceeding. Id. at 29. In his petition

for review filed in the court of appeals, Petitioner argued the prosecutor violated disclosure

obligations under Brady v. Maryland, 373 U.S. 83, 87 (1963), by concealing

communication between the prosecutor’s office and the military prosecutors. (Doc. 53 at

8-10; Doc. 54 at 59, ^4.) The court of appeals rejected Petitioner’s claim reasoning:

First, to the extent he attempts to incorporate by reference his petition below,

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that procedure is not permitted by our rules. See State v. Bortz, 169 Ariz. 575,

577, 821 P.2d26, 238 (App. 1991). And, in any event, we agree with the trial

court that summary rejection was proper. By pleading guilty, [Petitioner]

waived all non-jurisdictional defects save those related to the validity of his

plea. See State v. Quick, 177 Ariz. 314, 316, 868 P.2d 327, 329 (App. 193).

Thus, his claims of ineffective assistance of counsel are limited ‘to attacks

on the voluntary and intelligent nature of the guilty plea, through proof that

the advice received from counsel was not ‘within the range of competence

demanded of attorneys in criminal cases.” Blackledge v. Perry, 417 U.S. 21,

30 (1974), quoting McMann v. Richardson, 397 U.S. 759, 771 (1970).

(Doc. 54 at 59, TJ5.)

Regarding the first reason given by the Arizona appellate court, incorporation by

reference requires a court to “read beyond a petition or a brief (or a similar document),”

which the state courts are not required to do. Baldwin v. Reese, 541 U.S. 27, 31-32 (2004).

Rule 32.9 of the Arizona Rules of Criminal Procedure prohibits incorporation by reference

in PCR proceedings. See State v. Hess, 290 P.3d 473, 476-77, ^|13 (Ariz. App. 2012); State

v. Bortz, 821 P.2d 236, 238 (Ariz. App. 1991). Petitioner’s attempt to incorporate by

reference his claim renders his claim(s) technically exhausted and procedurally defaulted

because Petitioner did not raise the claims in a procedurally appropriate manner under the

Arizona Rules of Criminal Procedure. See Maples v. Thomas, 545 U.S. 266, 280 (2012);

Castille v. Peoples, 489 U.S. 346, 351 (1989); Casey v. Moore, 386 F.3d 896, 915-16 (9th

Cir. 2004).

As for the second reason provided by the Arizona appellate court, “a guilty plea

represents a break in the chain of events which has preceded it in the criminal process.”

Tolled v. Henderson, 411 U.S. 258, 267 (1973). “When a criminal defendant has solemnly

admitted in open court that he is in fact guilty of the offense with which he is charged, he

may not thereafter raise independent claims relating to the deprivation of constitutional

rights that occurred prior to the entry of the guilty plea.” Id. By pleading guilty, a defendant

“waives the right to assert on review all non-jurisdictional defenses, including deprivations

of constitutional rights.” State v. Chavez, 407 P.3d 85, 90 ^14 (Ariz. App. 2017) (citing

Tolled). Consequently, by operation of law, Petitioner waived his due process claim alleged

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in Ground III when he entered into his plea agreement. See Doc. 51 at 21-23 (waiver clause

in Petitioner’s plea agreement).

In reply, Petitioner argues that he was not “sufficiently aware of the relevant

circumstances and likely consequences of state[‘]s plea.” (Doc. 60 at 24.) He argues that

he was “induced” to plead guilty by the “real possibility of a concurrent sentence” and that

an email in possession of the prosecution establishes that he was to receive a consecutive

sentence from the military prosecution. Id. at 24-25. Petitioner argues that he “raised IAC

of first Rule 32 counsel to establish cause and prejudice for a procedural default of this

claim.” Id. at 23.

As set forth above, while counsel’s ineffectiveness in failing to properly preserve a

claim for review in the state courts can constitute cause to excuse a procedural default,

Edwards, 529 U.S. at 451, “a claim of ineffective assistance [must] be presented to the

state courts as an independent claim before it may be used to establish cause for a

procedural default.” Carrier, All U.S. at 489. See, p. 9, supra; Doc. 54 at 59, ^|4. It is

undisputed that Petitioner failed to timely present his IAC claims in the state court. This

Court also rejects Petitioner’s argument that the state court’s application of Rule

32.4(a)(2)(C) to bar his untimely claims is an inadequate and independent state law ground.

See, pp. 10-12, supra.

This Court determines that the claim alleged in Ground III is precluded from federal

habeas review.

Grounds IV. V. VI and VII - Double Jeopardy, Due Process. Privileges and

Immunities. Full Faith and Credit and Eight Amendment Violations

The underlying basis for the claims alleged in Grounds IV, V, VI and VII is the

state’s prosecution of Petitioner for what he claims are identical offenses that he pleaded

guilty to in a military tribunal. (Doc. 41 at 36-45; Doc. 41-1 at 1-19.)

Ground IV: In Ground IV, Petitioner claims that his right to be free from double

jeopardy was violated when he was prosecuted by the State of Arizona and the United

States military for the same offenses. Petitioner also challenges the dual-sovereignty

doctrine. (Doc. 41 at 36.) Petitioner raised the claim regarding the Double Jeopardy Clause

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in his first PCR petition. Id.; Doc. 53 at 6-7. This claim is properly exhausted. Castillo, 399

F.2d at 998 n.3; Swoopes, 196 F.3d at 1010-11.

This Court addresses the claim alleged in Ground IV on the merits, infra.

Grounds V, VI and VII: In Ground V, Petitioner asserts the State of Arizona violated

his “right to be free from having a state law enforced against him that will abridge his

privilege or immunities” when it prosecuted him for the “same offenses the [military had

already convicted and acquitted him of in a prior military tribunal.” (Doc. 41-1 at 1.)

Petitioner’s claim in Ground V also involves allegations regarding the dual-sovereignty

doctrine and double jeopardy. Since Petitioner raised a double jeopardy claim in his first

PCR petition this Court will treat any allegations concerning the Double Jeopardy Clause

in Ground V as exhausted. This portion of Ground V will be addressed on the merits along

with the merits of the claim alleged in Ground IV.

However, regarding the remainder of Petitioner’s claim in Ground V, Petitioner

admits in his amended petition that he did not raise the claim in the state court. Id. (“First

Rule 32 counsel failed to raise this ground on Petitioner’s behalf.”). Petitioner admits the

same with respect to the claims alleged in Grounds VI and VII. Id. at 7 (“First Rule 32

counsel failed to raise this ground on Petitioner’s behalf.”); and 14 (same).

Because the Arizona Court of Appeals was not given the opportunity to rule on the

claims alleged in Grounds V (except the Double Jeopardy Clause portion), VI (alleged full

faith and credit violation) and VII (Eighth Amendment cruel and unusual punishment

claim), these claims are not properly exhausted. See Baldwin, 541 U.S at 29. Any attempt

by Petitioner to return to state court to exhaust these claims would be futile in light of Rule

32.2 and 32.4(a) of the Arizona Rules of Criminal Procedure. These claims are therefore

technically exhausted but procedurally defaulted.

This Court rejects Petitioner’s effort to have the district court excuse his procedural

default by arguing that “IAC of first Rule 32 counsel was raised to the Arizona Court of

Appeals to establish cause for this ground.” See Doc. 41-1 at 1, 7, and 14. While ineffective

assistance of counsel can constitute cause to excuse a procedural default, Carpenter, 529

U.S. at 451; Carrier, All U.S. at 488-89, “a claim of ineffective assistance must be

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presented to the state courts as an independent claim before it may be used to establish

cause for a procedural default.” Carrier, All U.S. at 489.

Here, Petitioner failed to present his IAC claim in the state court in a procedurally

appropriate manner as required by Rule 32.4(a)(2)(C). See Doc. 58 at 4, ffl|6-8. This Court

has determined that cause and prejudice has not been established to excuse the procedural

default of the unexhausted claims alleged in Grounds V, VI and VII as discussed herein.

See, pp. 10-12, supra.

The unexhausted claims alleged in Grounds V, VI and VII are precluded from

federal habeas review

Grounds VIII and IX: Due Process Violation, Alleged Prosecutorial

Misconduct and Investigation and Grand Jury

Ground VIII: In Ground VIII, Petitioner alleges his Fifth and Fourteenth

Amendment due process rights were violated by the state when the prosecution allegedly

withheld exculpatory evidence. (Doc. 41-1 at 20.) Petitioner claims:

[T]he state’s withholding of the medical reports deprived him of the

opportunity to effectively challenge the validity of the state’s Count 1 at all

stages of the proceedings.

Id. Petitioner’s claim in Ground VIII involves Petitioner’s Rule 32.12(f) DNA motion that

he filed in the trial court and the state courts’ resolution of that motion. Id. at 23-30. See

also, Id. at 27 (“In an abuse of process, the superior court used an erroneous procedural bar

to cover its own abuse of discretion and to excuse the states {sic) Brady violations.

Petitioner showed the Az CAP Division Two in his [petition for review] how the superior

court failed to hold the state accountable to A.R.Cr.P. 32.12(f) and failed to follow that rule

itself, an abuse of discretion.”).

Respondents argue that Petitioner’s claim in Ground VIII is not truly a federal claim

but is a challenge to the state courts’ application of Rule 32 of the Arizona Rules of

Criminal Procedure to his case and its ruling on his Rule 32.12(f) DNA motion. (Doc. 50

at 15.) In reply, Petitioner argues his discussion of Rule 32.12(f) in his amended petition

“is to support the conclusion that the Az CAP Division Two made an unreasonable

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determination of fact in adjudicating his federal claims.” (Doc. 60 at 55-56.)

Federal habeas is available only on behalf of a person in custody in violation of the

U.S. Constitution or the law or treaties of the United States. 28 U.S.C. § 2254(a); Wilson,

562 U.S.at, 5-6; Estelle, 502 U.S. at 68. “A federal court may not issue the writ on the basis

of a perceived error of state law.” Pulley, 465 U.S. at 41. Alleged errors of state law cannot

be repackaged as federal errors simply by citing the due process clause. Poland, 169 F.3d

at 584. See also, Swarthout, 562 U.S. at 222 (“[W]e have long recognized that “a ‘mere

error of state law’ is not a denial of due process.”) (citation omitted). A state court’s

interpretation of state law “binds a federal court sitting in habeas corpus.” Bradshaw, 546

U.S. at 76.

Petitioner alleges in Ground VII that the state courts erred in their ruling on his Rule

32.12(f) motion for DNA filed pursuant to a state rule of criminal procedure. This Court

agrees with Respondents that Petitioner’s claim in Ground VIII is a claim that the state

courts did not correctly decide his Rule 32.12(f) motion for DNA. Accordingly, this Court

determines that the claim in Ground VIII does not state a claim for federal habeas relief.

Ground IX: In Ground IX, Petitioner claims his Fourteenth and Fifth Amendment

due process rights were violated “by the State’s one-sided investigation and false

presentation of the facts to the grand jury and omitted information.” (Doc. 41-1 at 31.)

Respondents argue this claim is non-cognizable on federal habeas review and waived.

(Doc. 50 at 16.) Petitioner does not address this claim in his reply. (Doc. 60 at 2.)

The United States Supreme Court has not applied the Fifth Amendment right to an

indictment by a grand jury to the states. See Branzburg v. Hayes, 408 U.S. 665, 688 n.25

(1972) (citing Hurtado v. California, 110 U.S. 516 (1884)). This Court agrees with

Respondents that for this reason Petitioner’s claim in Ground IX is non-cognizable on

federal habeas. Moreover, as mentioned above, “a guilty plea represents a break in the

chain of events which has preceded it in the criminal process.” Tollett, 411 U.S. at 267.

“When a criminal defendant has solemnly admitted in open court that he is in fact guilty

of the offense with which he is charged, he may not thereafter raise independent claims

relating to the deprivation of constitutional rights that occurred prior to the entry of the

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guilty plea.” Id. By pleading guilty, a defendant “waives the right to assert on review all

non-jurisdictional defenses, including deprivations of constitutional rights.” Chavez, 407

P.3d at 90 14. Consequently, by operation of law, Petitioner waived claim in Ground IX

when he pled guilty. (Doc. 51 at 21-23 (plea agreement waiver of rights).)

This Court determines that the claims alleged in Ground VIII and IX are noncognizable on federal habeas review or have been waived.

Ground X: Due Process Violation, Application of A.R.S. §§ 13-1405, -705

In Ground X, Petitioner alleges a violation of his Fifth and Fourteenth Amendment

due process rights arguing that A.R.S. § 13-1405, which defines sexual conduct with a

minor, is “unclear as to its application whether A.R.S. [§] 13-705 [governing sentences for

dangerous crimes against children] could be applied in a first time felony proceeding.”

(Doc. 41-1 at 36.)

However, as pointed out by Respondents, a state court’s application of a state statute

is a state law claim. See Estelle, 502 U.S. at 67-68. Accordingly, habeas relief is unavailable

to remedy “a perceived error of state law[.]” Pulley, 465 U.S. at 41. A state court’s

interpretation of state law “binds a federal court sitting in habeas corpus.” Bradshaw, 546

U.S. at 76. See also, Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993) (state appellate

court’s refusal to reverse a sentence on state law grounds is not cognizable in federal habeas

proceeding).

Additionally, the claim alleged in Ground X was waived when Petitioner pled

guilty. As mentioned above, “a guilty plea represents a break in the chain of events which

has preceded it in the criminal process.” Tollett, 411 U.S. at 267. “When a criminal

defendant has solemnly admitted in open court that he is in fact guilty of the offense with

which he is charged, he may not thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Id.

By pleading guilty, a defendant “waives the right to assert on review all non-jurisdictional

defenses, including deprivations of constitutional rights.” Chavez, 407 P.3d at 90, ^[14. In

Arizona, a defendant’s guilty plea “’waives all non-jurisdictional defects and defenses,

including claims of ineffective assistance of counsel, except those that relate to the validity

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Case 4:17-cv-00224-RM Document 65 Filed 05/21/20 Page 20 of 28

of [the] plea.’” State v. Leyva, 389 P.3d 1266, 1272, ^[18 (Ariz. App. 2017) (quoting State

v. Banda, 307 P.3d 1009, 1012, ^[12 (Ariz. App. 2013)). By operation of law, Petitioner

waived his claim alleged in Ground X when he pled guilty. (Doc. 51 at 21-23 (plea

agreement waiver of rights).)

This Court determines that the claim alleged in Ground X is non-cognizable on

federal habeas review and has been waived.

Ground XI - Due Process Violation, Sentence Enhancement

In Ground XI, Petitioner alleges that his sentence was enhanced under Arizona’s

dangerous crimes against children (DACA) statute without a jury determination. Petitioner

claims that (1) the first time he was informed that Counts 1 and 2 were both dangerous

crimes against children was at sentencing; (2) the trial court “stopped short” of identifying

A.R.S. § 13-705 as the DACA enhancement statute; and (3) “any connection between

A.R.S. § 13-1405 and A.R.S. § 13-705 remained anonymous in the record.” (Doc. 41-2 at

1-7.) Respondents argue that Petitioner’s claim is factually inaccurate and was waived.

(Doc. 50 at 18.)

This Court agrees with Respondents that Petitioner’s claim is factually inaccurate.

The plea agreement specified that Petitioner was pleading guilty to violating A.R.S. § 13-

1405 and that he would be sentenced under A.R.S. § 13-705. See Doc. 51 at 18-19. The

plea agreement also specified that the sentencing range was for a first DACA offense under

A.R.S. § 13-705(B), and expressly stated that Petitioner would be sentenced to 25 years.

Id. at 20, TJ6. This Court also notes that Petitioner’s indictment refers to both A.R.S. §§ 131405 and -705 and the State filed a DCAC notice that pertained to all charged offenses.

(Doc. 51 at 3-11.)

The claim alleged in Ground XI was waived when Petitioner entered his guilty plea.

“[A] guilty plea represents a break in the chain of events which has preceded it in the

criminal process.” Tollett, 411 U.S. at 267. By pleading guilty, a defendant “waives the

right to assert on review all non-jurisdictional defenses, including deprivations of

constitutional rights.” Chavez, 407 P.3d at 90, TJ14. By operation of law, Petitioner waived

the claim in Ground XI when he entered into his plea agreement. See Doc. 51 at 23-24

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Case 4:17-cv-00224-RM Document 65 Filed 05/21/20 Page 21 of 28

(plea agreement waiver of rights).

Petitioner claims in reply that “the actual waiver occurs during the plea colloquy,

which makes the plea hearing transcript the best available record for determining what

rights were actually waived.” (Doc. 60 at 56-57.) The transcript of the change of plea

hearing establishes that the trial court advised Petitioner that by pleading guilty he gives

up certain constitutional rights ... “and [specifically the right] to have the jury determine

any factors which could aggravate your sentence. If you enter a plea of guilty, the Court,

not a jury will decide whether aggravating factors exist.” (Doc. 51 at 45.) Petitioner plead

guilty. Id. at 46-47. At sentencing, the trial court identified emotional and physical harm to

the victims as aggravating factors. Id. at 64-65. The trial court identified no mitigating

factors. Id. at 65.

This Court determines that the claim alleged in Ground X is waived, factually

inaccurate and precluded from federal habeas review.

Grounds XII - Alleged Ineffective Assistance of Trial Counsel re Plea

In Ground XII, Petitioner claims that his trial counsel rendered ineffective assistance

by “failing to effectively communicate the terms of the State’s plea offer to him.” (Doc.

41-2 at 8-16.) Petitioner raised his claim in his first PCR proceeding and in his petition for

review in the Arizona Court of Appeals. (Doc. 53 at 5-6.) This claim is properly exhausted

and will be addressed on the merits. See Castillo, 399 F.3d at 998 n.3; Swoopes, 196 F.3d

at 1010-11.

Grounds XTTI through XIX -Ineffective Assistance of Trial Counsel. Failure to

Raise Claims

In Grounds XIII through XVIII, Petitioner claims his trial counsel rendered

ineffective assistance in failing to raise the claims that he alleges in Grounds III, IV, VIII,

IX, X and XI of his amended petition. (Doc. 41-2 at 17, 24, 32, 43, 49.) In Ground XIX,

Petitioner claims his trial counsel rendered in effective assistance in failing to suppress an

allegedly coerced statement he gave to police. Id. at 64.

In Petitioner’s third PCR petition, filed on August 1, 2018, Petitioner raised the IAC

claims alleged in Grounds XIV and XVIII against his first PCR counsel but not his trial

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Case 4:17-cv-00224-RM Document 65 Filed 05/21/20 Page 22 of 28

counsel. (Doc. 57 at 41-43; Doc. 58 at 4, ffl|6-8.) The court of appeals rejected these claims

as untimely. (Doc. 58 at 4, ffl|6-8.) As for the other IAC claims, these claims have not been

raised in any prior proceeding. As such, none of the IAC claims alleged in Grounds XIII

though XIX have been properly exhausted. See Baldwin, 541 U.S. 29, 33. Any attempt to

return to state court to exhaust these claims would be futile in light of Rule 32.2 and 32.4(a)

of the Arizona Rules of Criminal Procedure. These claims are technically exhausted and

procedurally defaulted.

As discussed, this Court rejects Petitioner’s argument that “IAC of first Rule 32

counsel was raised to the Arizona Court of Appeals to establish cause...” (Doc. 41-2 at 17,

24, 32, 43, 49, 56.) See, p. 9, supra. While counsel’s ineffectiveness in failing to properly

preserve a claim for review in the state courts can constitute cause to excuse a procedural

default, Carpenter, 529 U.S. at 451; Carrier, All U.S. at 488-89, a “claim of ineffective

assistance [must] be presented to the state courts as an independent claim before it may be

used to establish cause for a procedural default.” Carrier, All U.S. at 489. Because

Petitioner failed to present these IAC claims in the state courts in a procedurally appropriate

manner as required by Rule 32.4(a)(2)(C), these claims are technically exhausted and

procedurally defaulted without excuse. See also, pp. 10-12, supra.

This Court determines that the IAC of counsel claims alleged in Grounds XIII

through XIX are precluded from federal habeas review.

Summary

In sum, this Court determines that only the claims alleged in Ground IV, a portion

of Ground V and Ground XII are properly exhausted. The balance of the claims alleged in

the amended petition are precluded from habeas review as detailed above.

MERITS

As explained below, Petitioner’s exhausted claims are without merit.

Standard of Review under the AEDPA

Congress intended AEDPA to foster federal-state comity and further society’s

interest in the finality of criminal convictions. Panetti v. Quarterman, 551 U.S. 930, 945

(2007) (“AEPDA’s] design is to ‘further the principles of comity, finality, and

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Case 4:17-cv-00224-RM Document 65 Filed 05/21/20 Page 23 of 28

federalism.’”) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337 (2003)). Congress’ very

purpose in enacting the AEPDA was “to restrict the availability of habeas corpus relief.”

Greenwalt v. Stewart, 105 F.3d 1268, 1275 (9th Cir. 1997), abrogated on other grounds

recognized by Jackson v. Roe, 425 F.3d 645, 658-61 (9th Cir. 2005).

In the AEDPA, Congress set forth “a difficult to meet and highly deferential

standard for evaluating state-court rulings, which demands that state-court decisions must

be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). (internal

punctuation omitted). The district court may grant a writ of habeas corpus, “only on the

basis of some transgression of federal law binding on state courts.” Middleton, v. Cupp,

768 F.2d 1083, 1085 (9th Cir. 1985).

The AEDPA limits the availability of habeas relief for a claim adjudicated on the

merits to circumstances where the state court’s disposition 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.C. § 2254(d). Petitioner bears the burden of proving his claims fit one of the criteria

in paragraph (d). Pinholster, 563 U.S. at 181; Lambright v. Blodgett, 393 F.3d 943, 970

n.16 (9th Cir. 2004).

A state court decision is “contrary to” clearly established federal law when the court

has applied a rule of law that contradicts the governing law set forth in Supreme Court

precedent or has encountered a set of facts that are “materially indistinguishable” from a

Supreme Court decision and yet reached a different result than the Supreme Court. Early

v. Packer, 537 U.S. 3, 8 (2002) {per curiam). Under § 2254’s “unreasonable application”

clause, “a federal habeas court may not issue the writ simply because that court concludes

in its independent judgment that the relevant state-court decision applies clearly established

federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”

Williams v. Taylor, 529 U.S. 362, 411 (2000). “[Ejven a strong case for relief does not

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Case 4:17-cv-00224-RM Document 65 Filed 05/21/20 Page 24 of 28

mean that the state court’s contrary conclusion was unreasonable.” Harrington v. Richter,

562 U.S. 86, 101 (2011).

Richter explained:

As a condition for obtaining habeas corpus from a federal court, a state

prisoner must show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for

fair[-]minded disagreement.

562 U.S. at 101. “If this standard is difficult to meet, that is because it was meant to be.”

Id. Section 2254(d)(1) sets “a daunting standard - one that will be satisfied in relatively

few cases.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004).

In determining whether the state courts’ resolution of a claim was contrary to, or an

unreasonable application of, clearly established federal law, the district court must review

the last reasoned state court judgment addressing the claim. Cook v. Schriro, 538 F.3d

1000, 1015 (9th Cir. 2008) (citing Ylst, 501 U.S. at 803). The reviewing federal court is to

be “particularly deferential to [its] state court colleagues.” Maddox, 366 F.3d at 1000. The

federal habeas court presumes the state court’s factual determinations are correct, and the

petitioner bears the burden of rebutting this presumption by clear and convincing evidence.

See 28 U.S.C. § 2254(e)(1).

Ground IV and part of Ground V - Double Jeopardv/Dual-Sovereigntv

Doctrine

The underlying basis for the exhausted claims alleged in Grounds IV and V is the

State’s prosecution of Petitioner for what Petitioner claims are the identical offenses that

he pleaded guilty to in a military tribunal. In Ground IV, Petitioner claims that his right to

be free from Double Jeopardy has been violated by the State and the military prosecuting

him from the same offenses. He takes also issue with the dual-sovereignty doctrine. (Doc.

41 at 36; Doc. 41-1 at 1-6; Doc. 60 at 26-54.) Petitioner argues:

Had the United States Supreme Court not invent their dual sovereignty

doctrine (DSD) rule in the first place, then the State of Arizona would not

have been allowed to follow with their prosecution for the same offenses that

Petitioner was convicted and acquitted of in his prior military tribunal.

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Case 4:17-cv-00224-RM Document 65 Filed 05/21/20 Page 25 of 28

•

(Doc. 41 at 36.)

Respondents point out that the United States Supreme Court recently rejected an

argument just like that made by PetitionerUnit in Gamble v. United States, 139 S.Ct. 1960

(2019). In Gamble, the ed States Supreme Court “considerjed] ... whether to overrule a

longstanding interpretation of the Double Jeopardy Clause of the Fifth Amendment.” Id. at

1963. Gamble recognized that the dual-sovereignty doctrine recognizes that, under the

Double Jeopardy Clause, which provides that no person may be twice put in jeopardy ‘for

the same offence,’ a crime under one sovereign’s laws is not ‘the same offence’ as a crime

under the laws of another sovereign, and thus, a state may prosecute a defendant under

state law even if the federal government has prosecuted him for the same conduct under a

federal statue, or the reverse may happen. Id. The Court determined that Gamble’s evidence

in support of his argument “did not establish that those who ratified the Fifth Amendment

took it to bar successive prosecutions under different sovereigns’ laws - much less do so

with enough force to break a chain of precedent linking dozens of cases over 170 years.”

Id. at 1969.

Here, in rejecting Petitioner’s claim, the trial court determined, “At the time the

Defendant entered his plea in the state court proceedings, he was aware that his sentence

may run concurrent or consecutive to the sentence that would be served pursuant to the

general court martial.” (Doc. 52 at 112.) The trial court continued, “[mjoreover, Arizona’s

double jeopardy statute (A.R.S. Section 13-116) does not apply in the context of successive

prosecutions in separate jurisdictions^; accordingly, the Defendant is not entitled to relief

on this claim.” Id. at 113. (footnote omitted.) The court of appeals rejected Petitioner’s

Double Jeopardy claim and adopted the trial court’s reasoning that the Double Jeopardy

Clause does not “apply to prosecutions in separate jurisdictions.” (Doc. 54 at 60, T[7.)

Petitioner has not established that the state courts unreasonably applied federal law

in rejecting his Double Jeopardy Clause claim. Petitioner’s reply argues:

The Court in Gamble continues to ignore the origin of the U.S. government’s

ultimate source of authority to undertake criminal prosecutions in their

ultimate source of authority test analysis so as to hold that the U.S. and [sjtate

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Case 4:17-cv-00224-RM Document 65 Filed 05/21/20 Page 26 of 28

governments are separate sovereigns in the Double Jeopardy context.

(Doc. 60 at 26.) Petitioner’s argument is like that of the defendant in Gamble. Compare

Gamble, 139 U.S. at 1969-70 (“Gamble’s core claim is that early English cases reflect an

established common-law rule barring domestic prosecution for the same act under a

different sovereign’s laws.”); with, Doc. 60 at 28 (“There simply are no express writings

by the framers nor in the U.S. Constitution itself that warrants or sanctions the idea that the

U.S. and [s]tate governments or two [s]tate governments may successively prosecute an

individual for the same offense.”).

Petitioner has failed to establish that the state court rendered a decision that was

contrary to, or an unreasonable application of, clearly established federal law as determined

by the United States Supreme Court on his Double Jeopardy Clause claim. In fact, the state

courts correctly applied controlling United States Supreme Court precedent as announced

in Gamble.

This Court determines that Petitioner is not entitled to habeas relief on the claim

alleged in Ground IV and the exhausted portion of the claim alleged in Ground V.

Ground XII - IAC of Trial Counsel

The clearly established federal law governing IAC claims was set forth by the

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See Pinholster, 563 U.S.

at 189. To establish that counsel was constitutionally ineffective under Strickland, “a

defendant must show both deficient performance by counsel and prejudice.” Knowles v.

Mirzayance, 556 U.S. Ill, 122 (2009). Deficient performance is established when

counsel’s representation fell below an objective standard of reasonableness. Strickland,

466 U.S. at 688.

In determining deficiency, “a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance; that is,

the defendant must overcome the presumption that, under the circumstances, the

challenged action must be considered sound trial strategy.” Id. at 689. (Internal quotations

omitted.) To establish prejudice, a petitioner must show “a reasonable probability that, but

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Case 4:17-cv-00224-RM Document 65 Filed 05/21/20 Page 27 of 28

for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. “The pivotal question is whether the state court’s application of the

Strickland standard was unreasonable. This is different from asking whether defense

counsel’s performance fell below Strickland’s standard.” Richter, 562 U.S. at 100.

In Ground XII, Petitioner asserts that his trial counsel failed to effectively

communicate the terms of the plea agreement to him. (Doc. 41-2 at 8.) Petitioner claims

that he did not get an opportunity to speak with his trial counsel in private about the plea

during the change of plea hearing. Id. at 9-10. Petitioner further claims that trial counsel

“coerced him into accepting the plea by telling him that it was the only plea he would be

offered and that if he did not accept the plea then he would face sum (sic) 200 sum (sic)

years at trial.” Id. at 1.

In ruling on this claim the state PCR court held:

To establish deficient performance during plea negotiations, the Defendant

must prove that his attorney either (1) gave erroneous advice or (2) failed to

give information necessary to allow the Defendant to make an informed

decision whether to accept the plea. State v. Donald, 198 Ariz. 406, 413, 10

P.3d 1193 (App. 2000)[.] In his statement attached to the Petition, the

Defendant asserts that his attorney pressured him into signing the plea

agreement, and “...failed to give information necessary to allow the

Defendant to make an informed decision to accept the plea.” However, the

Defendant’s assertions are not supported by the current record before the

Court. In sum, the Court finds that the claims are without merit and that no

purpose would be served by any further proceedings on these claims.

(Doc. 52 at 112.) In upholding the trial court’s decision, the court of appeals determined:

Although he claims counsel did not adequately explain the plea to him, he

does not identify what information counsel could have provided him that

would have prompted him to reject the state’s plea offer. Nor does he claim

he would have rejected the plea had he been given more time to consider it.

(Doc. 54 at 60, ^6.)

Respondents point out that had Petitioner been convicted on the dismissed state

charges he would have faced spending 200 years in prison. Petitioner admits he knew this.

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Case 4:17-cv-00224-RM Document 65 Filed 05/21/20 Page 28 of 28

(Doc. 41-2 at 10.) Petitioner admitted his guilt. See Doc. 51 at 64 (change of plea hearing

at which Petitioner admitted, “And I knew I should have stopped way earlier. I’m just,

ashamed of everything I’ve done.”); Doc. 54 at 58, f2.) As pointed out by Respondents,

even with the two consecutive 25-year prison terms from the state and military sentences,

Petitioner reduced his time in prison to 50 years.

This Court agrees with Respondents that the state courts’ determination that

Petitioner failed to demonstrate prejudice was not unreasonable. See Moore, 562 U.S. at

130-32 (where counsel recommended a plea in lieu of an uncertain trial and risked a much

higher penalty, the state PCR courts’ disposition was reasonable for both the performance

and prejudice prongs).

RECOMMENDATION

The exhausted claims alleged in the amended petition (Ground IV, a portion of

Ground V and Ground XII) are without merit. The remainder of Petitioner’s claims are

either waived, non-cognizable on federal habeas review or procedurally defaulted without

excuse. Accordingly, the Magistrate Judge recommends that the district court, after its

independent review, DISMISS the Petition for Writ of Habeas Corpus.

Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file

written objections within fourteen days of being served with a copy of the Report and

Recommendation. A party may respond to the other party’s objections within fourteen

days. No reply brief shall be filed on objections unless leave is granted by the district court.

If objections are not timely filed, they may be deemed waived. If objections are filed, the

parties should use the following case number: 4:17-cv-00224-RM.

Dated this 21 st day of May, 2020.

Honorable D, Thomas Ferraro

United States Magistrate Judge

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Case: 21-15632, 10/17/2023, ID: 12810709, DktEntry: 61, Page 1 of 2

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

OCT 17 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MICHAEL ISIDORO SANCHEZ,

Petitioner-Appellee,

DAVID SHINN, Director of the Arizona

Department of Corrections; ATTORNEY

GENERAL FOR THE STATE OF

ARIZONA,

No.

21-15632

D.C. No. 4:17-cv-00224-RM

District of Arizona,

Tucson

ORDER

Respondents-Appellants.

MICHAEL ISIDORO SANCHEZ,

Petitioner-Appellant,

No.

21-16940

D.C. No. 4:17-cv-00224-RM

DAVID SHINN, Director, Director of the

Arizona Department of Corrections;

ATTORNEY GENERAL FOR THE

STATE OF ARIZONA,

Respondents-Appellees.

BEFORE: OWENS and BADE, Circuit Judges, and BAKER,* International Trade

Judge.

Judges Owens and Bade have voted to deny the petition for rehearing en

The Honorable M. Miller Baker, Judge for the United States Court of

International Trade, sitting by designation.

Case: 21-15632, 10/17/2023, ID: 12810709, DktEntry: 61, Page 2 of 2

banc, and Judge Baker so recommends. The full court has been advised of

Petitioner-Appellee/Cross-Appellant’s petition for rehearing en banc, and no judge

of the court has requested a vote on it.

Petitioner-Appellee/Cross-Appellant’s petition for rehearing en banc,

Docket No. 58, is therefore DENIED.

Case: 21-15632, 11/01/2023, ID: 12818083, DktEntry: 64, Page 1 of 4

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

NOV 1 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MICHAEL ISIDORO SANCHEZ

Petitioner-Appellee,

DAVID SHINN, Director of the Arizona

Department of Corrections; ATTORNEY

GENERAL FOR THE STATE OF

ARIZONA,

No.

21-15632

D.C. No. 4:17-cv-00224-RM

District of Arizona,

Tucson

ORDER

Respondents-Appellants.

MICHAEL ISIDORO SANCHEZ,

Petitioner-Appellant,

No.

21-16940

D.C. No. 4:17-cv-00224-RM

DAVID SHINN, Director, Director of the

Arizona Department of Corrections;

ATTORNEY GENERAL FOR THE

STATE OF ARIZONA,

Respondents-Appellees.

BEFORE: OWENS and BADE, Circuit Judges, and BAKER,* International Trade

Judge.

On August 8, 2023, we reversed the district court’s grant of conditional

The Honorable M. Miller Baker, Judge for the United States Court of

International Trade, sitting by designation.

Case: 21-15632, 11/01/2023, ID: 12818083, DktEntry: 64, Page 2 of 4

habeas relief and dismissed Petitioner-Appellee/Cross-Appellant Michael

Sanchez’s cross-appeal as moot. Through his counsel, Sanchez timely petitioned

for rehearing en banc on September 21, 2023, challenging circuit precedent upon

which our disposition relied. That petition was duly circulated to the full Court.

On October 17, 2023, we denied the petition for rehearing en banc after no

judge called for rehearing. Later that day, the clerk’s office received and docketed

Sanchez’s pro se “motion to recall the mandate, motion to set aside counsel, and

motion for leave to file an amended petition for panel rehearing and rehearing en

banc” (Dkt. No. 62), to which Sanchez attached the proposed “amended petition. »i

Sanchez’s motion and supporting exhibits explain that on September 11,

2023, he and his counsel discussed the substance of the petition to be filed by the

September 21 deadline. According to Sanchez, his counsel agreed to assert certain

legal arguments challenging circuit precedent, but those arguments were not

contained in the petition that counsel ultimately filed.2 Sanchez contends that

counsel has “betrayed” him and that had he known counsel would not advocate

those arguments, Sanchez would instead have filed the pro se petition proffered

with his motion.

Although only a criminal defendant can make certain core decisions such as

1 Sanchez has since moved, pro se, to file supplemental exhibits in support of his

motion (Dkt. No. 63).

2 Sanchez received the petition filed by his counsel on October 6, 2023.

Case: 21-15632, 11/01/2023, ID: 12818083, DktEntry: 64, Page 3 of 4

whether to plead guilty, to waive the right to a jury, to appeal, or to seek appellate

rehearing, see, e.g., Taylor v. Illinois, 484 U.S. 400, 417—18, 418 n.24 (1988)

(cataloging examples of “basic rights that the attorney cannot waive without the

fully informed and publicly acknowledged consent of the client”), once such a

defendant agrees to legal representation, “the lawyer has—and must have—full

authority to manage the conduct of the trial,” id., and, by extension, any ensuing

appeal.

It follows, then, that as to many decisions “pertaining to the conduct of the

trial,” New Yorkv. Hill, 528 U.S. 110, 115 (2000), and, by extension, any ensuing

appeal, “the defendant is deemed bound by the acts of his lawyer-agent and is

considered to have notice of all facts, notice of which can be charged upon the

attorney.” Id. (internal quotation marks omitted) (citing Link v. Wabash R. Co.,

370 U.S. 626, 634 (1962)). “Thus, decisions by counsel are generally given effect

as to what arguments to pursue,” id. (emphasis added) (citing Jones v. Barnes, 463

U.S. 745, 751 (1983)), “what evidentiary objections to raise,” id. (citing Henry v.

Mississippi, 379 U.S. 443, 451 (1965)), “and what agreements to conclude

regarding the admission of evidence,” id. (citing United States v. McGill, 11 F.3d

223, 226-27 (1st Cir. 1993)). “Absent a demonstration of ineffectiveness,

counsel’s word on such matters is the last.” Id.

Because Sanchez is bound by his counsel’s choice of arguments to assert in

Case: 21-15632, 11/01/2023, ID: 12818083, DktEntry: 64, Page 4 of 4

his rehearing petition that was previously circulated to the full Court, we deny his

motion to file an amended petition. We grant his motion to file exhibits and deny

as moot his motions to set aside counsel and recall the mandate.

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.