Trevino 296663 v. Shinn ( 2019 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David Trevino No. CV-18-03369-PHX-DLR (ESW) Petitioner, 10 ORDER v. 11 Charles L Ryan, et al., 12 Respondents. 13 14 15 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 16 Eileen S. Willett (Doc. 22) regarding Petitioner’s Amended Petition for Writ of Habeas 17 Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 10). The R&R recommends that the 18 Amended Petition be denied and dismissed with prejudice. The Magistrate Judge advised 19 the parties that they had fourteen days from the date of service of a copy of the R&R to file 20 specific written objections with the Court. (Doc. 22 at 10.) Petitioner filed an objection to 21 the R&R on October 17, 2019 (Doc. 26) and Respondents filed their response on October 22 22, 2019 (Doc. 28). 23 The Court has considered the objections and reviewed the R&R de novo. See Fed. 24 R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). The Magistrate Judge correctly found that the 25 Petitioner’s claims are procedurally defaulted because Petitioner failed to exhaust available 26 state remedies. Grounds One, Two, and Three (challenges to the effectiveness of 27 Petitioner’s trial counsel during sentencing) are claims that must be raised in a state petition 28 for post-conviction relief (“PCR”). As correctly explained in the R&R, Petitioner failed to 1 raise those claims in his state PCR and is unable to timely file a second PCR in state court 2 raising those grounds. See Ariz. R. Crim. P. 32.1 and 32.4. 3 Ground Four (a constitutional challenge to Petitioner’s sentence) is a claim that must 4 be raised in the Arizona Court of Appeals. Petitioner did not present the claim stated in 5 Ground Four to the Arizona Court of Appeals. The R&R correctly explained that the 6 Petitioner is precluded from raising this claim in state court because the time for appeal has 7 expired and a second PCR would fail because Ground Four is a claim that Petitioner could 8 have raised and adjudicated on direct appeal. Ariz. R. Crim. P. 32.2(a)(3). 9 In his objection, Petitioner argues that, contrary to the findings of the R&R, he raised 10 in a PCR the claims of ineffective assistance of counsel now raised in his Amended 11 Petition. He claims he filed a PCR raising these issues on August 23, 2018. However, 12 there is no PCR in the record filed on August 23, 2018, and no PCR filed any time near 13 that date. In his Amended Petition, Petitioner references only one PCR. That is the same, 14 and only, PCR found in the record—the PCR dismissed by the state trial court on August 15 21, 2017. There is no mention in the record or in the Amended Petition of a PCR filed on 16 August 23, 2018. 17 Assuming, however, that PCR had been filed, the claims in the PCR described by 18 Petitioner in his objection are different than the claims made in his Amended Petition. He 19 describes his alleged August 23, 2018 PCR as raising claims of ineffective assistance of 20 PCR counsel, not trial counsel or appellate counsel, as alleged here. Even if there were a 21 constitutional right to competent PCR counsel,1 ineffective assistance of PCR counsel is 22 not a claim alleged in any ground raised in the Amended Petition. Petitioner may not raise 23 new grounds for relief for the first time in an objection to an R&R. 24 25 1 Although there is yet no recognized right to counsel in PCR proceedings, in Martinez v. Ryan, 132 S.Ct. 1309 (2012), the Supreme Court noted that when PCR 26 proceedings are the defendant’s first opportunity to challenge the ineffective assistance of trial counsel, as they are in Arizona, they amount to the defendant’s only appeal on such a 27 claim. The Supreme Court recognized a narrow equitable exception under which ineffective assistance of PCR counsel may establish cause for the procedural default of an 28 ineffective assistance of trial counsel claim, but left open the question of whether a constitutional right to effective PCR counsel exists under such circumstances. Id. at 1315. 1 Petitioner’s objection to the R&R does not establish that he exhausted his available || state remedies. The R&R correctly decided that Petitioner’s habeas claims are procedurally || defaulted. The Court therefore accepts the recommended decision within the meaning of 4|| Federal Rule of Civil Procedure 72(b) and overrules Petitioner’s objections. See 28 U.S.C. || § 636(b)(1) 6 IT IS ORDERED that the R&R (Doc.22) is ACCEPTED. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because the 8 || dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would 9|| not find the ruling debatable, and because Petitioner has not made a substantial showing of || the denial of a constitutional right. The Clerk of the Court shall enter judgment denying 11 || and dismissing Petitioner’s Amended Petition for Writ of Habeas Corpus filed pursuant to 12}, U.S.C. § 2254 (Doc. 10) with prejudice and shall terminate this action. 13 Dated this 23rd day of December, 2019. 14 15 16 {Z, 17 _- Ch 18 Uaited States Dictric Judge 19 20 21 22 23 24 25 26 27 28 -3-