Morris v. Shinn ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Danny Ray Morris, No. CV-20-0322-TUC-JAS (EJM) 10 Petitioner, REPORT AND RECOMMENDATION 11 v. 12 David Shinn, et al., 13 Respondents. 14 Currently pending before the Court is Petitioner Danny Ray Morris’s Petition Under 15 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (“Petition”) 16 (Doc. 1). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus 17 (“Answer”) (Doc. 16) and Petitioner replied (Doc. 18). The Petition is ripe for 18 adjudication. 19 Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,1 this matter 20 was referred to Magistrate Judge Markovich for Report and Recommendation. The 21 Magistrate Judge recommends that the District Court excuse the untimeliness of the 22 Petition (Doc. 1), but deny it due to the claims being procedurally defaulted or non- 23 cognizable on habeas review. 24 . . . 25 . . . 26 . . . 27 . . . 28 1 Rules of Practice of the United States District Court for the District of Arizona. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 A. Initial Charge, Trial, and Sentencing 3 The Arizona Court of Appeals stated the facts2 as follows: 4 In February 2014, after being arrested with a backpack containing marijuana, A.H. informed Cochise County Sheriff’s detectives she had been 5 at Morris’s house the previous day to deliver water for “undocumented alien 6 drug mules” on the property. While there, she had seen “8-10 bundles of marijuana” in the house, and Morris had cut the marijuana in her backpack 7 from one of those bundles. A.H. also said Morris had received the bundles 8 of marijuana on the property after they were dropped there by “an ultra light air craft,” although it is unclear whether she personally witnessed the 9 delivery or heard about it from Morris. A.H. also mentioned having “seen a 10 handgun at the house” and that Morris had traded marijuana in exchange for a vehicle, without stating when either incident had occurred or how she knew 11 about the latter. The record does not reflect precisely when the interview 12 took place or how long it lasted, but it was evening by the time A.H. left the police substation. 13 Based on the information A.H. provided, along with three outstanding 14 warrants for Morris’s arrest, including one for failure to appear on marijuana 15 and paraphernalia charges, Detective Hudson contacted Justice of the Peace Timothy Dickerson about submitting a search warrant application via fax. 16 Judge Dickerson swore in the detective by telephone and reviewed the faxed 17 affidavit and warrant, ultimately signing the warrant and emailing it back. Detective Hudson’s “supervisors and the powers that be” then decided to 18 utilize a SWAT team to conduct and serve the warrant, but there was not 19 enough time remaining in the day “to have all of the resources brought in before the 10:00 p.m. . . . time-frame for a daytime search.” Hudson again 20 contacted Judge Dickerson about changing the warrant to a nighttime search, to which the judge agreed. 21 22 Answer (Doc. 16), State v. Morris, No. 2 CA-CR 2015-0458, Mem. Decision at 78–793 23 2 The appellate court noted that “[i]n reviewing a motion to suppress, we consider only the 24 facts presented to the trial court at the suppression hearing, viewing those facts in the light most 25 favorable to upholding the court’s ruling.” Answer (Doc. 16), State v. Morris, No. 2 CA-CR 2015- 0458, Mem. Decision at 78 (Ariz. Ct. App. May 29, 2018) (Exh. “R”) (Doc. 16-2). As these state 26 court findings are entitled to a presumption of correctness and Petitioner has failed to show by clear and convincing evidence that the findings are erroneous, the Court hereby adopts these 27 factual findings. 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473–74 (2007); 28 Wainwright v. Witt, 469 U.S. 412, 426 (1985); Cf. Rose v. Lundy, 455 U.S. 509, 519 (1982). 3 Page citations refer to the CM/ECF page numbers, unless otherwise noted. 1 (Ariz. Ct. App. May 29, 2018) (Exh. “R”) (Doc. 16-2). On July 10, 2014, Petitioner was 2 indicted on one (1) count of marijuana possession having a weight of more than four (4) 3 pounds and four (4) counts of unlawful possession of drug paraphernalia. Answer (Doc. 4 16), State v. Morris, CR2014-00380, Indictment at 3–4 (Cochise Cnty. Super. Ct. July 10, 5 2014) (Exh. “A”) (Doc. 16-1). On November 2, 2015, following a jury trial, Petitioner 6 was found guilty of all charges.4 Answer (Doc. 21), State v. Morris, No. 7 SO200CR291400380, Minute Entry at 96–99 (Cochise Cnty. Super. Ct. Nov. 2, 2015) 8 (Exh. “L”) (Doc. 16-1). On December 3, 2015, Petitioner was sentenced to a mitigated 9 term of imprisonment of 10.5 years on the possession count and three (3) years of 10 supervised probation on each of the paraphernalia counts—each probation term was to be 11 served concurrently with one another and consecutively to the possession term. Answer 12 (Doc. 16), State v. Morris, No. CR201400380, Sentence of Imprisonment/Sentence of 13 Probation at 105–109 (Cochise Cnty. Super. Ct. Nov. 30, 2015) (Exh. “M”) (Doc. 16-1). 14 B. Suppression Motion and Special Action 15 On August 5, 2015, defense counsel filed a motion to suppress pursuant to Franks5 16 and A.R.S. § 13-3914(C). Answer (Doc. 16), Def.’s Mot. to Suppress Pursuant to Franks 17 and A.R.S. § 13-3914(C), State v. Morris, No. CR201400380 (Cochise Cnty. Super. Ct. 18 Aug. 5, 2015) (Exh. “G”) (Doc. 16-1). Defendant sought suppression of “any and all 19 evidence collected pursuant to the search warrant issued by J.P.5 in this matter.” Id. at 62. 20 The State filed its response and Defendant replied. See Answer (Doc. 16), State’s Resp. to 21 Mot. to Suppress, State v. Morris, No. CR201400380 (Cochise Cnty. Super. Ct. Aug. 5, 22 2015) (Exh. “HH”) (Doc. 16-1); Answer (Doc. 16), Def.’s Reply Re: Mot. to Suppress, 23 State v. Morris, No. CR201400380 (Cochise Cnty. Super. Ct. Aug. 5, 2015) (Exh. “I”) 24 (Doc. 16-1). The trial court held hearings on the motion and the parties presented witness 25 testimony and oral argument. See Answer (Doc. 16), State v. Morris, No. 26 27 4 Petitioner was found not guilty of two (2) counts of possession that did not appear in the May 29, 2018, indictment. 28 5 Franks v. Delaware, 438 U.S. 154 (1978). 1 S0200CR201400380, Minute Entry: Suppression Hr’g (Cochise Cnty. Super. Ct. Sept. 11, 2 2015) (Exh. “J”) (Doc. 16-1); Answer (Doc. 16), State v. Morris, No. S0200CR201400380, 3 Minute Entry: Suppression Hr’g (Day 2) (Cochise Cnty. Super. Ct. Sept. 17, 2015) (Exh. 4 K”) (Doc. 16-1). The court denied Defendant’s motion. Answer (Doc. 16), Exh. “K” at 5 90. 6 On September 22, 2015, counsel for Petitioner filed a Petition for Special Action to 7 the Arizona Court of Appeals asserting three (3) issues for review. See Answer (Doc. 16), 8 Petr.’s Pet. for Special Action, Morris v. State, No. 2 CA-CR 2015-0062 (Ariz. Ct. App. 9 Sept. 22, 2015) (Exh. “GG”) (Doc. 16-8). Petitioner sought review of the trial judge’s 10 decisions to 1) deny Defendant’s requests for disclosure of a photograph, its relevant 11 metadata, and cellular telephone of Deputy Clark for expert analysis; 2) deny the 12 production of a transcript of the suppression hearing for Defendant’s use at trial; and 3) 13 deny Defendant’s request for investigative services. See id. Following briefing, on 14 October 14, 2015, the Arizona Court of Appeals declined to accept jurisdiction. Answer 15 (Doc. 16), Morris v. State, No. 2 CA-CR 2015-0062 (Ariz. Ct. App. Oct. 14, 2015) (Exh. 16 “JJ”) Doc. 16-9); see also id., State’s Resp. (Exh. “HH”) & Petr.’s Reply (Exh. “II”) (Doc. 17 16-9). 18 On October 19, 2015, Petitioner sought review of the appellate court’s denial of 19 special action jurisdiction. Resp.’s Suppl. Exhs. (Doc. 17), Petr.’s Pet. for Review of A 20 special Action Decision of the Court of Appeals, Morris v. State, No. CR-15-0356-PR 21 (Ariz. Oct. 19, 2015) (Exh. “KK”) (Doc. 17-1). On April 13, 2016, the Arizona Supreme 22 Court denied Petitioner’s petition. Resp.’s Suppl. Exhs. (Doc. 17), Morris v. State, No. 23 CR-15-0356-PR, Memorandum (Ariz. Apr. 13, 2016) (Doc. 17-1). 24 C. Direct Appeal 25 On March 29, 2017, counsel for Petitioner filed an Opening Brief asserting six (6) 26 issues for review. See Answer (Doc. 16), Appellant’s Opening Br., State v. Morris, No. 2 27 CA-CR 2015-0458 (Ariz. Ct. App. Mar. 29, 2017) (Exh. “O”) (Doc. 16-1). First, Petitioner 28 asserted that law enforcement did not have good cause to conduct a nighttime search, 1 thereby violating Petitioner’s Fourth Amendment rights.6 Id., Exh. “O” at 126, 139–52. 2 Based on this alleged violation, Petitioner further asserted that the trial court erred in 3 denying his motion to suppress. Id. Next, Petitioner argued that Cochise County Sheriff’s 4 Detective Hudson mislead the judicial officer during the search warrant application in 5 violation of Petitioner’s Fourth Amendment rights. Answer (Doc. 16), Exh. “O” at 126, 6 153–65. Third, Petitioner asserted that the trial court judge “showed a deep-seated 7 favoritism towards the issuing justice” which resulted in a violation of Petitioner’s due 8 process rights. Id., Exh. “O” at 126, 166–70. Fourth, Petitioner urged that the authorization 9 for a nighttime warrant was an amendment to the original search warrant; however, there 10 was no recording or other evidence that the later request was made under oath, thereby 11 violating Petitioner’s Fourth Amendment rights. Answer (Doc. 16), Appellant’s Opening 12 Br. at 126, 170–72, State v. Morris, No. 2 CA-CR 2015-0458 (Ariz. Ct. App. Mar. 29, 13 2017) (Exh. “O”) (Doc. 16-1). Fifth, Petitioner asserted that the trial court erred in 14 admitting “irrelevant and prejudicial evidence” that should have been precluded pursuant 15 to Rules 403 and 404(b), Arizona Rules of Evidence. Id., Exh. “O” at 126, 172–83. 16 Petitioner also raised that the trial court agreed to give a limiting instruction; however, no 17 such instruction was given. Id. Finally, Petitioner argued that the trial court erred “when 18 it precluded the Defense from calling Patrick Callahan as a witness because he was 19 disclosed one day late.” Answer (Doc. 16), Exh. “O” at 126, 183–93. 20 On May 29, 2018, the Arizona Court of Appeals affirmed Petitioner’s convictions 21 and sentence. See Answer (Doc. 16), State v. Morris, No. 2 CA-CR 2015-0458, Mem. 22 Decision (Ariz. Ct. App. May 29, 2018) (Exh. “R”) (Doc. 16-2). The court of appeals 23 addressed each of Petitioner’s allegations in turn. See id. As an initial matter, the appellate 24 court noted that it “review[s] a trial court’s ruling on a motion to suppress evidence for an 25 abuse of discretion if it involves a discretionary issue, but review[s] constitutional issues 26 and purely legal issues de novo.” Answer (Doc. 16), Exh. “R” at 79 (quoting State v. 27 Moody, 94 P.3d 1119, 1140 (Ariz. 2004)). Regarding Petitioner claim that the nighttime 28 6 Petitioner also asserted a violation of his rights pursuant to the Arizona State Constitution. 1 execution for the search warrant violated is Fourth Amendment rights, as well as his rights 2 pursuant to article II, § 8 of the Arizona Constitution, the appellate court observed that it 3 was unpersuaded by the State’s argument regarding the existence of good cause to support 4 a nighttime search warrant. Id., Exh. “R” at 80. The appellate court observed that “[b]elow, 5 Morris argued only that the nighttime search violated § 13-3917[,] [but] [o]n appeal, he 6 additionally contends it violated the Arizona and federal constitutions, acknowledging that 7 his failure to raise those issues in the trial court has waived all but fundamental error on 8 appeal.” Answer (Doc. 16), Exh. “R” at 81 (citing State v. Henderson, 115 P.3d 601, 607 9 (Ariz. 2005)). Upon review of the cases relied on by Petitioner, the appellate court 10 “reject[ed] Morris’s argument that a nighttime SWAT team search, at least on the facts 11 before [it], ‘requires higher justification beyond mere probable cause’ to be reasonable 12 under the Fourth Amendment.” Answer (Doc. 16), State v. Morris, No. 2 CA-CR 2015- 13 0458, Mem. Decision at 83 (Ariz. Ct. App. May 29, 2018) (Exh. “R”) (Doc. 16-2). It 14 “conclude[d] the nighttime SWAT team execution of the search warrant here did not 15 violate Morris’s constitutional rights.” Id. The appellate court also held that “although 16 there was not good cause for the nighttime service of the warrant under § 13-3917, Morris 17 ha[d] not demonstrated that statutory violation amounted to a violation of the Arizona 18 Constitution.” Answer (Doc. 16), Exh. “R” at 83. 19 Next, the appellate court considered “the validity of the search warrant on grounds 20 that Hudson’s telephonic request for nighttime service was not recorded, nor was there 21 evidence that the request was made under oath or affirmation, in violation of the Fourth 22 Amendment and Arizona statutes.” Id., Exh. “R” at 84 (internal quotations omitted). The 23 appellate court determined that “[w]hile the Fourth Amendment specifically states that 24 warrants must ‘particularly describ[e] the place to be searched,’ it does not say anything 25 about the time for warrants to be served.” Id., Exh. “R” at 85 (citing U.S. Const. amend. 26 VI) (2d alteration in original). The appellate court concluded that “Morris ha[d] not 27 established that changing the time of service [wa]s ‘tantamount to the issuance of a new 28 warrant’ under the Fourth Amendment . . . or any fundamental error on this ground.” 1 Answer (Doc. 16), State v. Morris, No. 2 CA-CR 2015-0458, Mem. Decision at 85 (Ariz. 2 Ct. App. May 29, 2018) (Exh. “R”) (Doc. 16-2) (quoting State v. Boniface, 546 P.2d 843, 3 846 (Ariz. Ct. App. 1976). 4 Third, the appellate court considered Petitioner argument that “the evidence 5 resulting from the warrant should have been suppressed under Franks, 438 U.S. 154, . . . 6 because Detective Hudson ‘fabricated, exaggerated, and misrepresented material 7 information’ supporting the warrant.” Id., Exh. “R” at 85. The appellate court reviewed 8 the suppression hearing testimony of various witnesses and observed that “the testimony 9 and credibility of the witnesses was for the trial court to assess and resolve . . . as it did 10 here.” Id., Exh. “R” at 87 (citations omitted).The appellate concluded that Petitioner did 11 not meet his burden to demonstrate a Franks violation. Id. 12 Fourth, the appellate court considered Petitioner’s contention that “the trial court 13 demonstrated bias in favor of the magistrate who issued the search warrant and therefore 14 its ruling on the motion to suppress violated the Due Process Clause of the Fourteenth 15 Amendment.” Answer (Doc. 16), Exh. “R” at 87. The appellate court reviewed the 16 suppression hearing testimony. Answer (Doc. 16), State v. Morris, No. 2 CA-CR 2015- 17 0458, Mem. Decision at 87–88 (Ariz. Ct. App. May 29, 2018) (Exh. “R”) (Doc. 16-2). The 18 court observed that it had already held “that there was not good cause for the search warrant 19 to be served at night, yet this did not mandate suppressing the evidence at trial.” Id., Exh. 20 “R” at 88. The appellate court recognized that “even crediting Morris’s view of the trial 21 judge’s bias, we would not be able to conclude he was prejudiced.” Id. (citations omitted). 22 Fifth, the appellate court reviewed the trial court’s rulings on the admission of 23 certain evidence which Petitioner challenged pursuant to Rules 403 and 404(b), Arizona 24 Rules of Evidence. Answer (Doc. 16), Exh. “R” at 88–91. The appellate found some 25 references “fleeting” and their prejudice negligible, and did not find error with the 26 remainder. Id. 27 Finally, the appellate court considered the preclusion of defense witness Patrick 28 Callahan due to late disclosure and the finding that his proffered testimony was hearsay. 1 Answer (Doc. 16), State v. Morris, No. 2 CA-CR 2015-0458, Mem. Decision at 92–93 2 (Ariz. Ct. App. May 29, 2018) (Exh. “R”) (Doc. 16-2). The court observed that “[e]ven if 3 Callahan’s testimony about Lang’s plan [to pin everything on Morris] could be said to be 4 relevant without any evidence that Lang carried out that plan or even had the opportunity 5 to do so, the trial court’s exclusion of the testimony would be at most harmless error.” Id., 6 Exh. “R” at 93. The appellate court noted that “[t]he charges against Morris were based 7 on his possession of drugs and paraphernalia found in the trailer he admitted owning.” Id. 8 The appellate court held that “[u]nder these circumstances, we are confident beyond a 9 reasonable doubt that the exclusion of Callahan’s testimony could have had no influence 10 on the jury’s verdict.” Id. (citations omitted). 11 Accordingly, the appellate court affirmed Petitioner’s convictions and sentences. 12 Answer (Doc. 16), Exh. “R” at 94. Petitioner did not seek review with the Arizona 13 Supreme Court. See Answer (Doc. 16), State v. Morris, No. 2 CA-CR 2015-0458, Mandate 14 (Ariz. Ct. App. Nov. 16, 2018) (Exh. “S”) (Doc. 16-2). 15 D. Post-Conviction Relief (“PCR”) Proceeding 16 On August 27, 2018, Petitioner filed his Notice of PCR. Answer (Doc. 16), Not. of 17 PCR, State v. Morris, No. CR201400380 (Cochise Cnty. Super. Ct. Aug. 27, 2018) (Exh. 18 “T”) (Doc. 16-2). On March 13, 2019, the court acknowledged receipt of Rule 32 counsel’s 19 Notice of Completion of Post-Conviction Review7 and ordered that the record be 20 forwarded to Petitioner. Answer (Doc. 16), State v. Morris, No. CR201400380, Order Re: 21 Not. of Completion of Record, Not. of Non-Filing of Suppl. Pet. Pursuant to Ariz. R. Crim. 22 P. 32.4(d)(2)(a) (Cochise Cnty. Super. Ct. Mar. 13, 2019) (Exh. “U”) (Doc. 16-2). 23 24 7 The Arizona Supreme Court has held that in Rule 32 proceedings, where counsel concludes that the proceeding has no merit, “a pleading defendant has a right under Ariz. Const. 25 art. 2 § 24 to file a pro se PCR petition.” Montgomery v. Sheldon (I), 889 P.2d 614. 618 (Ariz. 1995) Subsequently, the Arizona Supreme Court affirmed this rule and reiterated: 26 If, after conscientiously searching the record for error, appointed counsel in a PCR 27 proceeding finds no tenable issue and cannot proceed, the defendant is entitled to 28 file a pro se PCR. State v. Smith, 910 P.2d 1, 4 (Ariz. 1996). 1 On April 24, 2019, Plaintiff filed an “Omnibus Motion” seeking an extension of 2 time to file a pro se petition, as well as other miscellaneous relief. Answer (Doc. 16), 3 Omnibus Mot. Respectfully Requesting an Ext. of Time to File a pro se Pet. for Review or 4 Stay/Obeyance in Lieu That All Remedies are Exhausted to Move to the Higher Cts. 5 Showing Good Cause and Remedies of 32.1(A),(E)1,2, and 3, (F) Specific Exceptions and 6 Meritorious Reasons with Unconst. Inadequacies and Ineff. Assist. of Counsel 7 Representation Rule 32.1, State v. Morris, No. CR2014-00380 (Cochise Cnty. Super. Ct. 8 Apr. 24, 2019) (Exh. “V”) (Doc. 16-2). On May 17, 2019, the Rule 32 court acknowledged 9 receipt of Petitioner’s motion and its review of the same. Answer (Doc. 16), State v. 10 Morris, No. CR201400380, Order Denying/Order Dismissing (Cochise Cnty. Super. Ct. 11 May 17, 2019) (Exh. “W”) (Doc. 16-2). The Rule 32 court found “that the Defendant ha[d] 12 not specified how much time he wishes to be granted and his request is too general in 13 nature.” Id. As such, the Rule 32 court denied Petitioner’s request for additional time to 14 file his pro se petition and dismissed his Rule 32 Petition for failure to state a colorable 15 claim for relief. Id. 16 Petitioner did not file a petition for review in the Arizona court of Appeals. Answer 17 (Doc. 21), Case Information Sheet, Ariz. Court of Appeals, Div. 2 (Exh. “FF”) (Doc. 16- 18 8). 19 E. The Instant Habeas Proceeding 20 On July 30, 2020, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a Writ of 21 Habeas Corpus by a Person in State Custody (Doc. 1). Petitioner asserts four (4) grounds 22 for relief. First, Petitioner alleges a violation of his Fourth Amendment rights alleging an 23 illegal search and seizure. Petition (Doc. 1) at 6. Second, Petitioner alleges a violation of 24 the Due Process Clause of the Fifth and Fourteenth Amendments for an alleged failure to 25 disclose evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Petition (Doc. 1) at 26 7. Third, Petitioner urges a violation of his Fifth Amendment right against self- 27 incrimination and pursuant to Miranda v. Arizona, 384 U.S. 436, 444 (1996). Petition 28 (Doc. 1) at 8. Fourth, Defendant claims his counsel was ineffective “due to State agency 1 interference and conflict of interest.” Id. at 9. 2 On December 23, 2020, Respondents filed their Limited Answer (Doc. 16), and 3 Petitioner replied (Doc. 18). 4 5 II. STATUTE OF LIMITATIONS 6 A. Timeliness 7 As a threshold matter, the Court must consider whether Petitioner’s petition is 8 barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921–22 (9th Cir. 9 2002). The AEDPA mandates that a one-year statute of limitations applies to applications 10 for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). Section 11 2244(d)(1) provides that the limitations period shall run from the latest of: 12 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 13 (B) the date on which the impediment to filing an application created by 14 the State action in violation of the Constitution or laws of the United States 15 is removed, if the applicant was prevented from filing by such State action; 16 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by 17 the Supreme Court and made retroactively applicable to cases on collateral 18 review; or 19 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 20 21 28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time 22 during which a properly filed application for State post-conviction or other collateral 23 review with respect to the pertinent judgment or claim is pending shall not be counted 24 toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). 25 The other subsections being inapplicable, Petitioner must have filed his habeas 26 petition within one year from “the date on which the judgment became final by the 27 conclusion of direct review or the expiration of the time for seeking such review.” 28 28 U.S.C. § 2244(d)(1)(A); see also McQuiggin v. Perkins, 569 U.S. 383 (2013). On May 29, 1 2018, the Arizona Court of Appeals affirmed Petitioner’s convictions and sentences on 2 direct review. See Answer (Doc. 16), State v. Morris, No. 2 CA-CR 2015-0458, Mem. 3 Decision (Ariz. Ct. App. May 29, 2018) (Exh. “R”) (Doc. 16-2). Petitioner did not seek 4 review with the Arizona Supreme Court. See Answer (Doc. 16), State v. Morris, No. 2 5 CA-CR 2015-0458, Mandate (Ariz. Ct. App. Nov. 16, 2018) (Exh. “S”) (Doc. 16-2). 6 Therefore, Petitioner’s judgment became final on July 3, 2018, after the expiration of the 7 thirty-five (35) day period to seek review in the Arizona Supreme Court. Ariz. R. Crim. P. 8 31.21(b)(2)(A) (a party has thirty (30) days in which to file a petition for review); Ariz. R. 9 Crim. P. 1.3(a) (“[i]f a party may or must act within a specified time . . . five calendar days 10 shall be added to the prescribed period.”). 11 Pursuant to the AEDPA, Petitioner’s one-year limitation period expired, absent 12 tolling, on July 3, 2019. See White, 281 F.3d at 924 (“[T]he question of when a conviction 13 becomes final, so as to start the running of the statute of limitations under § 2244(d)(1)(A), 14 is fundamentally different from the question of how long the statute of limitations is tolled 15 under § 2244(d)(2).”). Petitioner filed his Petition (Doc. 1) on July 30, 2020. Therefore, 16 absent tolling, the Petition (Doc. 1) is untimely. 17 B. Statutory Tolling of the Limitations Period 18 The limitations period is tolled during the time in “which a properly filed application 19 for State post-conviction or other collateral review with respect to the pertinent judgment 20 or claim is pending[.]” 28 U.S.C. § 2244(d)(2); Allen v. Siebert, 552 U.S. 3, 4 (2007). An 21 application for State post-conviction relief is “‘properly filed’ when its delivery and 22 acceptance are in compliance with the applicable laws and rules governing filings.” Artuz 23 v. Bennett, 531 U.S. 4, 8 (2000). Statutory tolling of the limitations period ends “[a]fter 24 the State’s highest court has issued its mandate or denied review, [because] no other state 25 avenues for relief remain open.” Lawrence v. Florida, 549 U.S. 327, 332 (2007); see also 26 Hemmerle v. Schriro, 495 F.3d 1069, 1077 (9th Cir. 2007) (collateral proceeding 27 “determined” when the Arizona Supreme Court denied petition for review). 28 “[I]n Arizona, post-conviction ‘proceedings begin with the filing of the Notice.’” 1 Hemmerle, 495 F.3d at 1074 (quoting Isley v. Arizona Dept. of Corrections, 383 F.3d 1054 2 (9th Cir. 2004)). Petitioner filed his Notice of Post-Conviction Relief on August 27, 2018. 3 Answer (Doc. 16), Not. of PCR, State v. Morris, No. CR201400380 (Cochise Cnty. Super. 4 Ct. Aug. 27, 2018) (Exh. “T”) (Doc. 16-2). Here, the statute of limitations ran for thirty- 5 two (32) days8 until Petitioner initiated his PCR petition by presenting his PCR notice to 6 prison officials for mailing. On May 17, 2019, the Rule 32 court dismissed Petitioner’s 7 petition for a failure to state a colorable claim for relief. Answer (Doc. 16), State v. Morris, 8 No. CR201400380, Order Denying/Order Dismissing (Cochise Cnty. Super. Ct. May 17, 9 2019) (Exh. “W”) (Doc. 16-2). Petitioner did not appeal this decision to the Arizona Court 10 of Appeals. As such, the Rule 32 court’s order became final thirty-five (35) days later, on 11 June 21, 2019. See Ariz. R. Crim. P. 32.16(a)(1), 1.3(a). Petitioner’s time to seek habeas 12 relief expired 333 days later on April 14, 2020; however, he did not file his Petition (Doc. 13 1) until July 30, 2020. Accordingly, the Court finds, absent equitable tolling, Petitioner’s 14 Petition (Doc. 1) is untimely. 15 C. Equitable Tolling of the Limitations Period 16 The Supreme Court of the United States has held “that § 2244(d) is subject to 17 equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). The 18 Ninth Circuit Court of Appeals “will permit equitable tolling of AEDPA’s limitations 19 period only if extraordinary circumstances beyond a prisoner’s control make it impossible 20 to file a petition on time.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (quotations 21 and citations omitted). Moreover, Petitioner “bears the burden of establishing two 22 elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary 23 24 8 The statute of limitations ran from July 3, 2018 until August 4, 2018. The prison mailbox 25 rule directs that a pro se prisoner’s federal habeas petition is deemed filed when “he hands it over to prison authorities” for mailing. See Houston v. Lack, 487 U.S. 266, 275–76 (1988). Arizona 26 also applies the prison mailbox rule to pro se filings. See State v. Rosario, 987 P.2d 226, 228 27 (Ariz. Ct. App. 1999) (applying the prison mailbox rule to notice of post-conviction relief). For Petitioner’s trial and appellate filings, the Court has relied on the date the accepting court file 28 stamped for ease of reference; however, for his post-conviction filings and calculating timeliness, the Court relies on the date on which Petitioner handed his documents over to prison authorities. 1 circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also 2 Holland, 260 U.S. at 649 (quoting Pace). 3 Petitioner asserts that “the lack of written record, and the extraordinary 4 circumstances due to fact that ‘Covid 19’, [sic] and being Quarentine [sic], Hard Lockdown 5 which took its toll on this Whetstone Unite Tucson Complex” should excuse his untimely 6 filing. Reply (Doc. 18) at 1. The Court finds that the circumstances surrounding the 7 COVID-19 pandemic meet the “very high threshold” of establishing that extraordinary 8 circumstances beyond Petitioner’s control made it impossible for him to timely file a 9 habeas petition and that those extraordinary circumstances were the cause of his 10 untimeliness. United States v. Battles, 362 F.3d 1195, 1197 (9th Cir. 2004). As such, 11 Petitioner is entitled to equitable tolling and the Court will excuse the untimeliness of his 12 habeas petition. 13 14 III. STANDARD OF REVIEW 15 A. In General 16 The federal courts shall “entertain an application for a writ of habeas corpus in 17 behalf of a person in custody pursuant to the judgment of a State court only on the ground 18 that he is in custody in violation of the Constitution or laws of treaties of the United States.” 19 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person 20 in state custody: 21 shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – (1) 22 resulted in a decision that was contrary to, or involved an unreasonable 23 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 24 unreasonable determination of the facts in light of the evidence presented in 25 the State court proceeding. 26 28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Correcting 27 errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 28 502 U.S. 62, 67 (1991). Ultimately, “[t]he statute’s design is to ‘further the principles of 1 comity, finality, and federalism.’” Panetti v. Quarterman, 551 U.S. 930, 945 (2007) 2 (quoting Miller-El v. Cockrell, 537 U.S. 322, 337 (2003)). Furthermore, this standard is 3 difficult to meet and highly deferential “for evaluating state-court rulings, [and] . . . 4 demands that state-court decisions be given the benefit of the doubt.” Pinholster, 563 U.S. 5 at 181 (citations and internal quotation marks omitted). 6 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 7 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The 8 “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims 9 have been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19 (2013). Federal 10 courts reviewing a petition for habeas corpus must “presume the correctness of state courts’ 11 factual findings unless applicants rebut this presumption with ‘clear and convincing 12 evidence.’” Schriro v. Landrigan, 550 U.S. 465, 473–74 (2007) (citing 28 U.S.C. § 13 2254(e)(1)). Moreover, on habeas review, the federal courts must consider whether the 14 state court’s determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473; 15 Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is 16 unreasonable where a state court properly identifies the governing legal principles 17 delineated by the Supreme Court, but when the court applies the principles to the facts 18 before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, (2011); 19 Williams v. Taylor, 529 U.S. 362 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th 20 Cir. 2004). “AEDPA requires ‘a state prisoner [to] show that the state court’s ruling on the 21 claim being presented in federal court was so lacking in justification that there was an error 22 . . . beyond any possibility for fairminded disagreement.’” Burt, 571 U.S. at 19–20 (quoting 23 Harrington, 562 U.S. at 103) (alterations in original). 24 B. Exhaustion of State Remedies 25 Prior to application for a writ of habeas corpus, a person in state custody must 26 exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This 27 “provides a simple and clear instruction to potential litigants: before you bring any claims 28 to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy, 1 455 U.S. 509, 520 (1982). As such, the exhaustion doctrine gives the State “the opportunity 2 to pass upon and correct alleged violations of its prisoners’ federal rights.” Baldwin v. 3 Reese, 541 U.S. 27, 29 (2004) (internal quotations omitted). Moreover, “[t]he exhaustion 4 doctrine is principally designed to protect the state courts’ role in the enforcement of federal 5 law and prevent disruption of state judicial proceedings.” Rose, 455 U.S. at 518 (internal 6 citations omitted). This upholds the doctrine of comity which “teaches that one court 7 should defer action on causes properly within its jurisdiction until the courts of another 8 sovereignty with concurrent powers, and already cognizant of the litigation, have had an 9 opportunity to pass upon the matter.” Id. (quoting Darr v. Burford, 339 U.S. 200, 204 10 (1950)). 11 Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long 12 as the applicant “has the right under the law of the State to raise, by any available 13 procedure, the question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has 14 been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard 15 v. Connor, 404 U.S. 270, 275 (1971). The fair presentation requirement mandates that a 16 state prisoner must alert the state court “to the presence of a federal claim” in his petition, 17 simply labeling a claim “federal” or expecting the state court to read beyond the four 18 corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27, 31–33 (2004) 19 (rejecting petitioner’s assertion that his claim had been “fairly presented” because his brief 20 in the state appeals court did not indicate that “he was complaining about a violation of 21 federal law” and finding the justices’ opportunity to read a lower court decision addressing 22 the federal claims insufficient to support fair presentation); Hiivala v. Wood, 195 F.3d 1098 23 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state 24 court because petitioner presented claim in state court only on state grounds). Furthermore, 25 in order to “fairly present” one’s claims, the prisoner must do so “in each appropriate state 26 court.” Baldwin, 541 U.S. at 29. “Generally, a petitioner satisfies the exhaustion 27 requirement if he properly pursues a claim (1) throughout the entire direct appellate process 28 of the state, or (2) throughout one entire judicial postconviction process available in the 1 state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, 2 Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 1998)). 3 In Arizona, however, for non-capital cases “review need not be sought before the 4 Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d 5 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 6 2007); Moreno v. Gonzalez, 962 P.2d 205 (Ariz. 1998). Additionally, the Supreme Court 7 has further interpreted § 2254(c) to recognize that once the state courts have ruled upon a 8 claim, it is not necessary for an applicant to seek collateral relief for the same issues already 9 decided upon direct review. Castille v. Peoples, 489 U.S. 346, 350 (1989). 10 C. Procedural Default 11 1. In General 12 “A habeas petitioner who has defaulted his federal claims in state court meets the 13 technical requirements for exhaustion; there are no state remedies any longer ‘available’ to 14 him.” Coleman v. Thompson, 501 U.S. 722, 732 (1991). The Ninth Circuit Court of 15 Appeals explained the difference between exhaustion and procedural default as follows: 16 The exhaustion doctrine applies when the state court has never been presented with an opportunity to consider a petitioner’s claims and that 17 opportunity may still be available to the petitioner under state law. In 18 contrast, the procedural default rule barring consideration of a federal claim applies only when a state court has been presented with the federal claim, but 19 declined to reach the issue for procedural reasons, or if it is clear that the state 20 court would hold the claim procedurally barred. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and citations 21 omitted). Thus, in some circumstances, a petitioner’s failure to exhaust a 22 federal claim in state court may cause a procedural default. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002); Beaty v. Stewart, 303 F.3d 975, 23 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner 24 failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement 25 would now find the claims procedurally barred.’”) (quoting Coleman v. 26 Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). 27 28 1 Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005). “Together, exhaustion and 2 procedural default promote federal-state comity.” Shinn v. Ramirez, 142 S. Ct. 1718, 1732 3 (2022). 4 Thus, a prisoner’s habeas petition may be precluded from federal review due to 5 procedural default in two ways. First, where a “petitioner failed to exhaust state remedies 6 and the court to which the petitioner would be required to present his claims in order to 7 meet the exhaustion requirement would now find the claims procedurally barred.” 8 Coleman, 501 U.S. at 735 n.1 (citations omitted). In this circumstance, the federal court 9 “must consider whether the claim could be pursued by any presently available state 10 remedy.” Cassett, 406 F.3d at 621 n.6 (quotations and citations omitted) (emphasis in 11 original). Second, where the petitioner presented his claims to the state court, which denied 12 relief based “on a state law ground that is independent of the federal question and adequate 13 to support the judgment.” Coleman, 501 U.S. at 728. Federal courts are prohibited from 14 review in such cases because they have “no power to review a state law determination that 15 is sufficient to support the judgment, [because] resolution of any independent federal 16 ground for the decision could not affect the judgment and would therefore be advisory.” 17 Id. This is true whether the state law basis is substantive or procedural. Id. (citations 18 omitted). 19 In Arizona, a petitioner’s claim may be procedurally defaulted where he has waived 20 his right to present his claim to the state court “at trial or on appeal or in any previous 21 collateral proceeding[.]” Ariz. R. Crim. P. 32.2(a)(3) (2022). If an asserted claim “raises 22 a violation of a constitutional right that can only be waived knowingly, voluntarily and 23 personally by the defendant[,]” such claim is not automatically precluded. Id. Neither 24 Rule 32.2. nor the Arizona Supreme Court has defined claims of “sufficient constitutional 25 magnitude” requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, 26 46 P.3d 1067 (Ariz. 2002). The Ninth Circuit Court of Appeals recognized that this 27 assessment “often involves a fact-intensive inquiry” and the “Arizona state courts are better 28 suited to make these determinations.” Cassett, 406 F.3d at 622. 1 2. Overcoming a Procedural Bar 2 Where a habeas petitioner’s claims have been procedurally defaulted, a petitioner 3 must show cause and actual prejudice to overcome the bar on federal review. Teague v. 4 Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state appellate 5 proceeding barred federal habeas review unless petitioner demonstrated cause and 6 prejudice); see also Smith v. Murray, 477 U.S. 527, 534 (1986) (recognizing “that a federal 7 habeas court must evaluate appellate defaults under the same standards that apply when a 8 defendant fails to preserve a claim at trial.”). “[T]he existence of cause for a procedural 9 default must ordinarily turn on whether the prisoner can show that some objective factor 10 external to the defense impeded counsel’s efforts to comply with the State’s procedural 11 rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Martinez-Villareal v. Lewis, 12 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally 13 defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on 14 which to address the merits of his claims.”). Actual prejudice requires a habeas petitioner 15 to “show not merely that the errors . . . created a possibility of prejudice, but that they 16 worked to his actual and substantial disadvantage, infecting his entire trial with error of 17 constitutional dimensions.” Murray, 477 U.S. at 494 (emphasis in original) (internal 18 quotations omitted). Without a showing of both cause and prejudice, a habeas petitioner 19 cannot overcome the procedural default and gain review by the federal courts. Id. at 494– 20 96. 21 The Supreme Court has recognized, however, that “the cause and prejudice standard 22 will be met in those cases where review of a state prisoner’s claim is necessary to correct 23 ‘a fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722 (1991) 24 (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)). “The fundamental miscarriage of 25 justice exception is available ‘only where the prisoner supplements his constitutional claim 26 with a colorable showing of factual innocence.’” Herrera v. Collins, 506 U.S. 390, 404 27 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). 28 Thus, “‘actual innocence’ is not itself a constitutional claim, but instead a gateway through 1 which a habeas petitioner must pass to have his otherwise barred constitutional claim 2 considered on the merits.” Herrara, 506 U.S. at 404. Further, to demonstrate a 3 fundamental miscarriage of justice, a habeas petitioner must “establish by clear and 4 convincing evidence that but for the constitutional error, no reasonable factfinder would 5 have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). 6 7 IV. ANALYSIS 8 Respondents assert that “[e]ven if this Court should find Morris’ petition timely, his 9 claims are procedurally defaulted without excuse and/or are not cognizable in federal 10 habeas.” Answer (Doc. 16) at 7. As discussed below, the Court agrees with Respondents, 11 and finds Petitioner’s claims either non-cognizable or procedurally defaulted. 12 A. Ground One: Fourth Amendment 13 Petitioner asserts that he was subject to an “[i]llegal search and seizure pursuant to 14 Franks and A.R.S. § 13-3914(c).” Petition (Doc. 1) at 6. 15 In general, Fourth Amendment claims are not cognizable in this habeas corpus 16 proceeding. Stone v. Powell, 428 U.S. 465, 494 (1976) (“where the State has provided an 17 opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may 18 not be granted federal habeas corpus relief on the ground that evidence obtained in an 19 unconstitutional search or seizure was introduced at his trial.”). “The relevant inquiry is 20 whether petitioner had the opportunity to litigate his claim, not whether he did in fact do 21 so or even whether the claim was correctly decided.” Ortiz-Sandoval v. Gomez, 81 F.3d 22 891, 899 (9th Cir. 1996) (citations omitted). “[I]n the case of a typical Fourth Amendment 23 claim, asserted on collateral attack, a convicted defendant is usually asking society to 24 redetermine an issue that has no bearing on the basic justice of his incarceration.” Stone, 25 428 U.S. at 491 n.31. Additionally, “the exclusionary rule is a judicially created remedy 26 rather than a personal constitutional right . . . [which is of] minimal utility . . . when sought 27 to be applied to Fourth Amendment claims in a habeas proceeding.” Stone, 428 U.S. at 28 494 n.37. Additionally, as discussed in Section III.A., supra, this Court shall “entertain an 1 application for a writ of habeas corpus in behalf of a person in custody pursuant to the 2 judgment of a State court only on the ground that he is in custody in violation of the 3 Constitution or laws of treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis 4 added). Federal habeas corpus relief is not for the purpose of correcting errors of state law. 5 Estelle v. McGuire, 502 U.S. 62, 67 (1991). 6 Prior to trial, defense counsel filed a motion to suppress. Answer (Doc. 16), Def.’s 7 Mot. to Suppress Pursuant to Franks and A.R.S. § 13-3914(C), State v. Morris, No. 8 CR201400380 (Cochise Cnty. Super. Ct. Aug. 5, 2015) (Exh. “G”) (Doc. 16-1). Defendant 9 sought suppression of “any and all evidence collected pursuant to the search warrant issued 10 by J.P.5 in this matter.” Id. at 62. Defendant argued that suppression was required because 11 1) there were “[n]o recording[s] of the telephonic proceedings leading to th[e] warrant . . . 12 [and] the facts supporting the issuance of the warrant were not preserved”; 2) there was no 13 “good cause” for a nighttime warrant; and 3) there was no probable cause for issuance of 14 the search warrant. See Answer (Doc. 16), Exh. “G.” The trial court held hearings on the 15 motion and the parties presented witness testimony and oral argument. See Answer (Doc. 16 16), State v. Morris, No. S0200CR201400380, Minute Entry: Suppression Hr’g (Cochise 17 Cnty. Super. Ct. Sept. 11, 2015) (Exh. “J”) (Doc. 16-1); Answer (Doc. 16), State v. Morris, 18 No. S0200CR201400380, Minute Entry: Suppression Hr’g (Day 2) (Cochise Cnty. Super. 19 Ct. Sept. 17, 2015) (Exh. K”) (Doc. 16-1). The court denied Defendant’s motion. Answer 20 (Doc. 16), Exh. “K” at 90. 21 On September 22, 2015, counsel for Petitioner filed a Petition for Special Action to 22 the Arizona Court of Appeals asserting three (3) issues for review. See Answer (Doc. 16), 23 Petr.’s Pet. for Special Action, Morris v. State, No. 2 CA-CR 2015-0062 (Ariz. Ct. App. 24 Sept. 22, 2015) (Exh. “GG”) (Doc. 16-8). Petitioner sought review of the trial judge’s 25 decisions to 1) deny Defendant’s requests for disclosure of a photograph, its relevant 26 metadata, and cellular telephone of Deputy Clark for expert analysis; 2) deny the 27 production of a transcript of the suppression hearing for Defendant’s use at trial; and 3) 28 deny Defendant’s request for investigative services. See id. Following briefing, on 1 October 14, 2015, the Arizona Court of Appeals declined to accept jurisdiction. Answer 2 (Doc. 16), Morris v. State, No. 2 CA-CR 2015-0062 (Ariz. Ct. App. Oct. 14, 2015) (Exh. 3 “JJ”) Doc. 16-9); see also id., State’s Resp. (Exh. “HH”) & Petr.’s Reply (Exh. “II”) (Doc. 4 16-9). 5 On October 19, 2015, Petitioner sought review of the appellate court’s denial of 6 special action jurisdiction. Resp.’s Suppl. Exhs. (Doc. 17), Petr.’s Pet. for Review of A 7 special Action Decision of the Court of Appeals, Morris v. State, No. CR-15-0356-PR 8 (Ariz. Oct. 19, 2015) (Exh. “KK”) (Doc. 17-1). On April 13, 2016, the Arizona Supreme 9 Court denied Petitioner’s petition. Resp.’s Suppl. Exhs. (Doc. 17), Morris v. State, No. 10 CR-15-0356-PR, Memorandum (Ariz. Apr. 13, 2016) (Doc. 17-1). 11 On March 29, 2017, counsel for Petitioner filed an Opening Brief asserting six (6) 12 issues for review focused primarily on the trial court’s denial of his motion to suppress. 13 See Answer (Doc. 16), Appellant’s Opening Br., State v. Morris, No. 2 CA-CR 2015-0458 14 (Ariz. Ct. App. Mar. 29, 2017) (Exh. “O”) (Doc. 16-1). On May 29, 2018, the Arizona 15 Court of Appeals affirmed Petitioner’s convictions and sentence. See Answer (Doc. 16), 16 State v. Morris, No. 2 CA-CR 2015-0458, Mem. Decision (Ariz. Ct. App. May 29, 2018) 17 (Exh. “R”) (Doc. 16-2). The court of appeals addressed each of Petitioner’s allegations in 18 turn. See id. Petitioner did not seek review with the Arizona Supreme Court. See Answer 19 (Doc. 16), State v. Morris, No. 2 CA-CR 2015-0458, Mandate (Ariz. Ct. App. Nov. 16, 20 2018) (Exh. “S”) (Doc. 16-2). 21 Based on the foregoing, the Court finds that Petitioner had a full and fair opportunity 22 to litigate any alleged Fourth Amendment violation in the state courts. Accordingly, the 23 Court finds Petitioner’s claim precluded upon habeas review. See Stone, 428 U.S. at 494. 24 A. Grounds Two Through Four—Procedural Default 25 In Ground Two, Petitioner asserts that his due process rights were violated based 26 upon the non-disclosure of Brady9 material.10 Petition (Doc. 1) at 7. In Ground Three, 27 28 9 Brady v. Maryland, 373 U.S. 83 (1963). 10 Petitioner does not specify what Brady material the State failed to disclose aside from a 1 Petitioner urges that his Fifth Amendment right against self-incrimination was violated, 2 because law enforcement did not read him his Miranda11 rights prior to questioning. Id. at 3 8. In Ground Four, Petitioner alleges ineffective assistance of trial counsel based upon 4 “state agency interference” and alleged “conflict of interest.”12 Id. at 9. 5 Here, Petitioner did not present any of these claims to the State courts. As discussed 6 in Section III.B., supra, prior to bringing a claim to federal court, a habeas petitioner must 7 first present claims to each appropriate state court. Baldwin v. Reese, 541 U.S. 27, 29 8 (2004) (in order to “fairly present” one’s claims, the prisoner must do so “in each 9 appropriate state court”). As such, the claims would now be precluded and meet the 10 technical requirements for exhaustion. Ariz. R. Crim. P. 32.2(a)(3) (2018). The Court 11 finds Petitioner’s claims Two through Four are procedurally defaulted. Coleman v. 12 Thompson, 501 U.S. 722, 735 n.1 (1991) (“petitioner failed to exhaust state remedies and 13 the court to which the petitioner would be required to present his claims in order to meet 14 the exhaustion requirement would now find the claims procedurally barred”). 15 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 16 courts are prohibited from subsequent review unless the petitioner can show cause and 17 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure 18 to raise claims in state appellate proceeding barred federal habeas review unless petitioner 19 demonstrated cause and prejudice). Petitioner has not met his burden to show either cause 20 or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show 21 not merely that the errors . . . created a possibility of prejudice, but that they worked to his 22 actual and substantial disadvantage, infecting his entire trial with error of constitutional 23 dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez- 24 Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause 25 photograph that was litigated in the suppression motion. See Petition (Doc. 1) at 7, 19–22. 26 11 Miranda v. Arizona, 384 U.S. 436 (1966). 27 12 The Court notes that Petitioner does not seem to be dissatisfied with counsel’s 28 representation. Rather, he asserts that various individuals and agencies attempted to hamper counsel’s ability to litigate his case. See Petition (Doc. 1) at 8, 29–30. 1 “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to 2 address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and 3 convincing evidence that but for the constitutional error, no reasonable factfinder would 4 have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). As such, 5 Petitioner has failed to meet the cause and prejudice standard or demonstrate a fundamental 6 miscarriage of justice. See Coleman, 501 U.S. at 748 (citations and quotations omitted). 7 Accordingly, Petitioner’s claims regarding alleged due process, lack of Miranda warnings, 8 and ineffective assistance of counsel are denied. 9 10 V. CONCLUSION 11 Based upon the foregoing, the Court finds that Petitioner’s Petition (Doc. 1) is 12 untimely, but he has met his burden for equitable tolling. The Court further finds that 13 Petitioner’s claims are either non-cognizable or procedurally defaulted. 14 15 VI. RECOMMENDATION 16 For the reasons delineated above, the Magistrate Judge recommends that the District 17 Judge enter an order DENYING Petitioner’s Petition Under 28 U.S.C. § 2254 for a Writ 18 of Habeas Corpus by a Person in State Custody (Doc. 1). 19 Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, 20 any party may serve and file written objections within fourteen (14) days after being served 21 with a copy of this Report and Recommendation. A party may respond to another party’s 22 objections within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 23 72(b)(2). No replies shall be filed unless leave is granted from the District Court. If 24 objections are filed, the parties should use the following case number: CV-20-0322-TUC- 25 JAS. 26 . . . 27 . . . 28 . . . 1 Failure to file timely objections to any factual or legal determination of the || Magistrate Judge may result in waiver of the right of review. 3 Dated this 28th day of April, 2023. 4 . 6 Exic J. MaKovich United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 24 -