Barnes v. Shinn ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Cardinal Micheaux Barnes, No. CV-18-01632-PHX-ROS 10 Petitioner, ORDER 11 v. 12 Charles L Ryan, et al., 13 Respondents. 14 15 Magistrate Judge James F. Metcalf issued a Report and Recommendation (“R&R”) 16 recommending the Court find Petitioner Cardinal Micheaux Barnes procedurally defaulted 17 all of his claims. Barnes filed objections to the R&R but, after de novo review, the R&R 18 is correct and will be adopted. 19 BACKGROUND 20 In 2016, Petitioner pleaded guilty to one count of conspiracy to commit aggravated 21 assault and was sentenced to 23.75 years. Petitioner filed a timely notice of post-conviction 22 relief which was denied on September 19, 2017. Petitioner had until October 30, 2017, to 23 seek review of that denial by filing a petition for review with the Arizona Court of Appeals. 24 Petitioner did not do so. According to Petitioner, he was unable to file a petition for review 25 because his legal documents were confiscated on September 16, 2017, and not returned to 26 him until October 20, 2017. Thus, under Petitioner’s version of events, he had his legal 27 documents from October 20 through October 30 but he did not file a motion for extension 28 of time or a petition for review during that period. Petitioner did not file a motion for 1 extension of time or petition for review after that period either. Instead, Petitioner made 2 no further effort to pursue his claims in state court. Petitioner filed the present federal 3 petition on May 29, 2018. 4 The R&R concludes Petitioner’s failure to file a petition for review by the Arizona 5 Court of Appeals means his claims were not properly exhausted and, given the long-passed 6 deadline for filing such a petition, as well as Arizona’s prohibitions on successive petitions, 7 Petitioner is now barred by Arizona law from pursuing his claims in state court. Thus, the 8 R&R states “Petitioner’s claims are all now procedurally defaulted.” (Doc. 63 at 10). The 9 R&R states there is no basis to excuse that default, meaning all the claims should be 10 dismissed with prejudice. 11 In his objections to the R&R, Petitioner argues he was unable to file a timely petition 12 for review because his legal files were confiscated until October 20, 2017. (Doc. 64 at 5). 13 In addition, it appears Petitioner argues that, even after he received his legal files on 14 October 20, he could not have obtained the supplies necessary to prepare a petition for 15 review for some time after the deadline passed.1 (Doc. 64 at 7). At the end of his 16 objections, however, Petitioner admits he intentionally bypassed the Arizona Court of 17 Appeals. According to Petitioner, he filed his federal “Petition of Writ of Habeas Corpus 18 . . . because he didn’t believe that he would receive a fair and convincing attempt on 19 correcting the Due Process deprivations with the state courts.” (Doc. 64 at 10). 20 ANALYSIS 21 Having pleaded guilty, if Petitioner wished to challenge his conviction or sentence 22 he was required to exhaust his claims by presenting them to the trial court in a petition for 23 post-conviction relief and a petition for review to the Arizona Court of Appeals. Swoopes 24 1 The R&R noted Petitioner did not establish he requested legal supplies around the time the petition for review was due. The R&R cited that lack of evidence as indicating 25 Petitioner did not diligently pursue the petition for review. Petitioner now claims it would be unfair to base the denial of relief “solely” on the absence of “a store receipt from over 26 2 years ago.” (Doc. 64 at 7). But the R&R does not recommend the denial of relief “solely” because of the absence of “a store receipt.” Rather, the absence of “a store receipt” was 27 viewed together with Petitioner’s failure to file a petition for review even after the deadline. In other words, the R&R concluded that Petitioner had not made a showing he was 28 diligently attempting to file a petition for review. Petitioner has not presented evidence or argument casting doubt on that conclusion. 1 v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (“[C]laims of Arizona state prisoners are 2 exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on 3 them.”). It is undisputed Petitioner did not file a petition for review. It is also undisputed 4 that Arizona law would not allow Petitioner to now present his claims to the Arizona Court 5 of Appeals. Thus, Petitioner’s claims are all procedurally defaulted and the only issues are 6 whether Petitioner can show “cause and prejudice” to excuse that procedural default or if 7 “failure to consider the claims will result in a fundamental miscarriage of justice.” 8 Coleman v. Thompson, 501 U.S. 722, 750 (1991). 9 Starting with the “cause” aspect of the “cause and prejudice” inquiry, Petitioner 10 “must show that some objective factor external to the defense impeded [his] efforts to 11 comply with the State’s procedural rule.” Davila v. Davis, 137 S. Ct. 2058, 2065 (2017). 12 It appears Petitioner believes the confiscation of his legal materials until October 20, 2017, 13 meets the standard for “cause.” But Petitioner had his legal materials as of October 20, 14 2017, and his petition for review was not due until October 31, 2017. Thus, Petitioner had 15 eleven days to prepare his petition for review. If Petitioner needed more time, he could 16 have filed a motion seeking additional time. At worst, Petitioner could have submitted a 17 petition after the applicable deadline and requested the state court accept the untimely 18 filing. Petitioner, however, chose to make no effort to seek review by the Arizona Court 19 of Appeals. Instead, Petitioner waited approximately seven months and then filed his 20 federal petition. With no convincing explanation for Petitioner’s failure to present his 21 claims to the Arizona Court of Appeals, he has not established “cause” justifying his failure 22 to exhaust his claims. Therefore, the Court need not address whether Petitioner can meet 23 the “prejudice” requirement. See Smith v. Murray, 477 U.S. 527, 533 (1986) (holding lack 24 of “cause” means there is no need to address “prejudice”). 25 Finally, Petitioner has not established the failure to consider his claims will result 26 in a fundamental miscarriage of justice. To make such a showing, Petitioner would have 27 to make “a showing of actual innocence.” Gage v. Chappell, 793 F.3d 1159, 1167 (9th 28 1|| Cir. 2015). Petitioner has not done so.” 2 Accordingly, 3 IT IS ORDERED the Report and Recommendation (Doc. 63) is ADOPTED. The 4|| Petition for Writ of Habeas Corpus (Doc. 1) is DENIED. The Clerk of Court shall enter a 5 || judgment of dismissal with prejudice. 6 IT IS FURTHER ORDERED a Certificate of Appealability is DENIED because 7\|| dismissal of the petition is justified by a plain procedural bar and jurists of reason would 8 || not find the procedural ruling debatable. 9 Dated this 30th day of December, 2019. 10 fo = ll ( a, 12 LC NLA Me Honorable Roslyn ©. Silver 3 Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 || 2 One of Petitioner’s claims involves alleged ineffective assistance of trial counsel. Petitioner has not invoked the special rule regarding procedural default of such claims. See Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of 271) ineffective assistance at trial.”). With no attempt to invoke or present arguments under Martinez, Petitioner has not established Martinez has any application here. Cf Ramirez v. 28 Ryan, 937 F.3d 1230, 1242 (9th Cir. 2019) (placing burden on prisoner to “demonstrate” applicability of Martinez). -4-