Botch v. Attorney General of the State of Arizona ( 2022 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gererd Kenneth Botch, No. CV-21-00466-PHX-DLR (MTM) 10 Petitioner, ORDER 11 v. 12 Attorney General of the State of Arizona, 13 Respondent. 14 15 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 16 Michael T. Morrissey (Doc. 20) regarding Petitioner Gererd Kenneth Botch’s Amended 17 Petition for Writ of Habeas Corpus (“Petition”) filed pursuant to 28 U.S.C. § 2254 (Docs. 18 12, 14.) Also pending before the Court is Petitioner’s “Formal Request to file 2nd Habeas 19 Petition” (Doc. 23.) 20 The R&R found that Petitioner’s request for relief is not cognizable in federal 21 habeas proceedings and recommends that the Amended Petition be denied and dismissed 22 with prejudice. Petitioner filed an objection to the R&R (Doc. 21), and Respondents filed 23 their Reply (Doc. 22). 24 I. FACTS The underlying facts are set forth by the Arizona Court of Appeals as follows: 25 In April 2017, Officer Baynes was on patrol in the west side of 26 Phoenix. Around 1 a.m. he noticed a roadway, ending in a cul- de-sac, blocked by three or four shopping carts, a bicycle with 27 a cart attached to it, and a fifty-five-gallon drum. Baynes also observed a “transient camp” on the side of the roadway. Botch 28 and Randell Havier were in the middle of the road, and Baynes approached both men. Baynes first questioned Havier, who 1 was later arrested for marijuana possession. Baynes asked Botch whether he possessed any drugs or drug paraphernalia. 2 Botch said he did not, but he could not vouch for what was inside a nearby backpack. 3 Baynes asked to search Botch’s pockets. The parties disagree 4 whether consent was given. Regardless, a search occurred and Baynes found cash, a bag of methamphetamine and a tightly- 5 rolled dollar bill in Botch's pockets. Baynes activated his recording device, Mirandized Botch, and interviewed him. 6 About sixteen minutes into the recorded interview, Botch said he never consented to be searched. 7 Botch was arrested, charged, and convicted of possession or 8 use of dangerous drugs, a Class 4 felony. Botch filed a pretrial motion to suppress evidence of drugs, drug paraphernalia, and 9 statements he made to Baynes, claiming the encounter was illegal and that he did not consent to Baynes searching him. At 10 the suppression hearing, Baynes testified that Botch consented to the search, but Havier testified that Botch “told [Baynes] not 11 to” search his pockets. 12 The court denied Botch’s motion to suppress. Because of a factual error in the court's order, the State requested and 13 obtained an order nunc pro tunc correcting the error; the court also sua sponte clarified its previous ruling and expressly 14 found Botch consented to the search. 15 Following his conviction, Botch was sentenced to a mitigated term of six years in prison. 16 17 State v. Botch, No. 1 CA-CR 19-0383, 2020 WL 5834845, at *1 (Ariz. App. Oct. 1, 2020). 18 (Doc. 18-1, Ex. S, at 209–10.) The Arizona Court of Appeals affirmed the conviction and 19 the Arizona Supreme Court denied review. 20 II. FINDINGS OF THE R&R 21 The sole ground for relief alleged in the Amended Petition is a Fourth Amendment 22 claim. Petitioner contends that law enforcement violated his Fourth Amendment right to 23 privacy and to not be harassed when they conducted the search that resulted in the 24 discovery of the evidence that was used at trial to convict him. Petitioner’s request for 25 post-conviction relief (“PCR”) is still pending before the trial court because the sole ground 26 for relief alleged in the Amended Petition has been finally adjudicated on the merits in an 27 appeal. Nevertheless, he is properly before this Court. 28 The R&R correctly determined that Petitioner’s Fourth Amendment Claim, his sole 1 ground for relief, is not cognizable in federal habeas proceedings. Citing Stone v. Powell, 2 428 U.S. 465, 494 (1976) and Newman v. Wengeler, 790 F.3d 876, 878-79 (9th Cir. 2015), 3 the R&R correctly stated that “[a] Fourth Amendment claim is not cognizable in a § 2554 4 proceeding when the petitioner had ‘an opportunity for full and fair litigation’ of the claim 5 in state court.” (Doc. 20 at 4.) Petitioner fully litigated the search-and-seizure issue in 6 state court. Id. 7 III. PETITIONER’S OBJECTIONS. 8 Petitioner first argues that he lacked an opportunity to fully and fairly litigate the 9 Fourth Amendment claim because the trial court was mistaken when it denied his 10 suppression motion. (Doc. 21 at 1.) But the Amended Petition did not allege that 11 procedural deficiencies occurred in the state court proceedings. Because there were no 12 allegations in the Amended Petition that the opportunity to litigate the claim was not full 13 and fair, there was no reason for the R&R to address that issue. The issue was possibly, 14 arguably, raised in Petitioner’s Reply brief. If it was, raising that argument for the first 15 time in the reply amounts to a waiver of the argument. United States v. Romm, 455 F.3d 16 990, 997 (9th Cir. 2006). The issue was waived. 17 Petitioner’s objection also raises, for the first time, an assertion of a freestanding 18 factual innocence claim. Although a district court has the discretion to consider evidence 19 presented for the first time in party’s objection, the Court finds no reason to do so. There 20 is no reliable evidentiary support for his claim. Petitioner relies on a summary of his self- 21 serving, presumably trial testimony,1 that the pants in which the methamphetamine was 22 found were given to him and he was not aware they contained drugs. Even if his testimony 23 was deemed credible, it does not meet the burden of establishing that more likely than not 24 no reasonable juror would have found Petitioner guilty beyond a reasonable doubt. He 25 admitted that he snorted methamphetamine earlier the same day the drugs were found in 26 his pants. He also concedes that had he been tested he would have been tested positive for 27 1 Respondents did not include trial transcripts as part of their answer. Based on the 28 nature of the claim asserted there was no reason for trial transcripts to be included or for the magistrate judge to order that they be included. See 28 U.S.C. § 2254, Rule 5. || methamphetamine. (Doc. 18-1 at 106, 163.) His explanation of drugs placed in the pants 2 || by some unknown person before he put them on and his admissions that he was a user of || methamphetamine the day he was searched, does not present the kind of evidence that 4|| would overcome the extraordinarily high burden for establishing a claim of freestanding □□ factual innocence. 6|| IV. MOTION TO FILE SECOND HABEAS PETITION. 7 For this Court to have jurisdiction to consider a second habeas petition, Petitioner || must obtain the Ninth Circuit’s authorization to file a second petition. 28 U.S.C. § 9|| 2244(b)(3)(C). To obtain the Ninth Circuit’s authorization, Petitioner must make a prima 10|| facie showing that a second petition is not statutorily barred. Balbuena v. Sullivan, 980 11|| F.3d 619, 635 (9th Cir. 2020). Petitioner, having failed to comply with this jurisdictional 12 || requirement, this Court lacks jurisdiction to authorize or consider a second habeas petition. 13 IT IS ORDERED that the R&R (Doc.20) is ACCEPTED. 14 IT IS ORDERED that Petitioner’s Amened Petition for Writ of Habeas Corpus | filed pursuant to 28 U.S.C. § 2254 (Docs. 12, 14) is DISMISSED with prejudice. 16 IT IS ORDERED that Petitioner’s “Formal Request to file 2’ Habeas Petition” 17|| (Doc. 23) is DENIED. 18 IT IS ORDERED that a Certificate of Appealability and leave to proceed in forma 19 || pauperis on appeal are DENIED because the dismissal of the Petition is justified because 20 || reasonable jurists would 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 and dismissing Petitioner’s Petition for Writ of Habeas Corpus 23 || filed pursuant to 28 U.S.C. § 2254 (Docs. 12, 14) with prejudice and shall terminate this 24 || action. 25 Dated this 15th day of March, 2022. 26 - b 4 bla 28 Do . Rayes United States District Judge -4-