Fulcher #345782 v. Thornell et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Jesse Scott Fulcher,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-25-08142-PCT-JAT (ASB)
REPORT AND RECOMMENDATION
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES
DISTRICT JUDGE:
Pro se Petitioner James Scott Fulcher (“Petitioner”), who is confined in the Central
Arizona Correctional and Rehabilitation Facility, has filed a Petition for Writ of Habeas
Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 (Doc. 1).1 For the reasons that follow,
undersigned will recommend that the Petition be denied and dismissed.
PROCEDURAL HISTORY
I. State Proceedings
A. Facts
The Arizona Court of Appeals (hereinafter “Court of Appeals”) summarized the
facts and procedural history as follows:2
1 Citation to the record indicates documents as they are displayed in the District of Arizona’s
official Court electronic document filing system under Case No. CV-25-08142-PCT- JAT (ASB).
2 The Arizona Court of Appeals’ recitation of the facts is presumed correct. See 28 U.S.C.
§ 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting
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Fulcher was a close family friend of the victims, K.C., H.P.,
and L.D. All three victims disclosed that Fulcher touched their
breasts, with K.C. disclosing he touched her genitals. K.C. and
L.D. further reported that Fulcher offered to give them
marijuana.
The State charged Fulcher with one count of molestation of a
child, a class 2 felony and dangerous crime against children;
four counts of sexual abuse of a victim under fifteen years of
age, class 3 felonies and dangerous crimes against children;
two counts of sexual abuse of a victim fifteen years of age or
older, class 5 felonies; and two counts of offering to transfer
marijuana, class 3 felonies. Fulcher waived his right to a jury
trial, and the superior court held a bench trial.
At trial, the mother of K.C. and H.P. testified that she
considered Fulcher a member of the family and trusted him to
be alone with the victims. She allowed Fulcher, a licensed
massage therapist, to massage the victims’ shoulders. The
family cut ties with Fulcher after K.C. disclosed that he had
been touching her inappropriately. Around this time, Fulcher
text messaged the family and expressed disbelief that they
could “condemn” him for making a “mistake.”
K.C. testified that Fulcher regularly gave her massages. On one
occasion, while K.C. had her head on Fulcher’s lap, he began
massaging her upper thigh. Fulcher moved his hand beneath
her underwear and “grazed” her genitals. On a second
occasion, while in a swimming pool, Fulcher pulled up K.C.’s
swimsuit and massaged her exposed breasts. In doing so,
Fulcher touched the fatty tissue of the tops and bottoms of
K.C.’s breasts and “grazed” her nipples. This became an
almost daily occurrence, with Fulcher touching K.C.’s breasts
under the guise of a massage “hundreds or maybe thousands”
of times. Fulcher’s conduct caused K.C. fear and confusion,
and she often made excuses to get away from him.
K.C. testified that she initially enjoyed Fulcher’s company and
confided in him. Fulcher began divulging personal, sometimes
sexual details, admitting to K.C. that he had problematic
thoughts about the victims and that he would date her if he were
argument that statement of facts in state appellate court’s opinion should not be afforded the
presumption of correctness which may be rebutted only by clear and convincing evidence).
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younger. During one of those conversations, Fulcher told K.C.
that if she wanted to experiment with drugs, he would provide
her with “safe” marijuana not “laced” with any other
substances. K.C. was between thirteen and fifteen years old
when the offenses occurred.
H.P. testified that Fulcher regularly gave her massages,
eventually moving her bra to rub the fatty tissue of the tops and
sides of her breasts. In doing so, he would “sometimes” touch
her nipples. As with K.C., Fulcher once mentioned that he
would be attracted to H.P. if he were younger. Although H.P.
could not remember specific dates, she testified that the
offenses occurred “almost every time he was over” before she
was fourteen years old. During this period, H.P. saw Fulcher
move his hand under K.C.’s shirt and massage near her breast
area.
L.D. testified that, during a massage, Fulcher moved his hands
under her shirt to rub the fatty tissue of the tops and sides of
her breasts. L.D. did not give Fulcher permission to touch her
breasts and she made an excuse to get away from him. L.D.
testified that she initially trusted Fulcher and they confided in
each other, with him revealing details about his romantic and
sexual history. In one of these conversations, L.D. told Fulcher
she struggled with substance abuse issues. Instead of offering
help, Fulcher offered to buy L.D. marijuana. L.D. testified that
she knew Fulcher made the other victims uncomfortable and
she sensed that they were experiencing similar abuse. K.C. and
H.P. eventually asked L.D. “to find a way to help them get out
of it[.]” L.D. was between the ages of eighteen and nineteen
years old when the offenses occurred.
An officer, who conducted the initial interviews, testified that
the victims did not appear coached and seemed genuinely
relieved to tell their stories. The officer testified that Fulcher
neither denied nor admitted the allegations. A detective, who
conducted the follow-up interviews, testified that Fulcher
denied any inappropriate conduct but admitted to massaging
the victims and rubbing their “pec area.” Fulcher further
admitted to speaking to K.C. about his romantic and sexual
history. A blind expert3 on sexual abuse testified that offenders
3 A “blind expert” is one who has not reviewed case-specific evidence and will not testify
about the events of the case at trial.
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will break down a victim’s barriers by building trust and
incorporating “innocent” touching onto their relationship. In
some instances, the offender may introduce a victim to drugs
or alcohol.
After the State’s case-in-chief, Fulcher moved for a judgment
of acquittal under Arizona Rule of Criminal Procedure 20. The
superior court denied the motion, finding the State presented
sufficient evidence to proceed. The superior court specifically
rejected Fulcher’s assertion that the evidence did not establish
touching of the breasts under the statute governing disciplinary
actions for massage therapists, Arizona Revised Statutes
(“A.R.S.”) § 32-4253(B)(1), which defines the term “breast”
as “any portion of the female breast below a point immediately
above the top of the areola.” The superior court reasoned that
the criminal code had not defined the term and it was therefore
a “factual determination as to whether the evidence that has
been presented so far shows that the breast has been touched.”
Fulcher testified on his own behalf and denied the allegations.
Fulcher, however, admitted to massaging the victims, rubbing
K.C.’s upper thigh and pectoral area, and moving the victims’
clothing during massages. He further admitted to telling the
victims he would want his children to use marijuana in a safe
environment. A character witness testified that Fulcher spent
time with his young children and he never had concerns about
Fulcher’s conduct. The witness did not know the victims or
K.C.’s and H.P.’s mother.
The superior court found Fulcher guilty as charged. In reaching
its verdict, the superior court found the victims had no motive
to lie and provided credible testimony. The superior court
found the date ranges and victims’ ages proven through dates
of birth, residential history, and the location of the offenses.
Again, the superior court rejected Fulcher’s argument that the
State failed to prove touching of the breasts as defined by
A.R.S. § 32-4253(B)(1) but noted the contact would amount to
sexual abuse even if that definition controlled.
The superior court sentenced Fulcher to an aggregate term of
42.5 years[] imprisonment.
(Doc. 1 at 29-31.)
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B. Direct Appeal
On October 27, 2020, Petitioner filed a Notice of Appeal. (Doc. 11-1 at 21-22.)
Petitioner, through counsel, timely filed his Opening Brief in the Court of Appeals. (Id. at
30-73.) He presented four4 issues on appeal:
1. Was there sufficient evidence to support the convictions for
Child Molestation of K.C.?
2. Was there sufficient evidence to support convictions for sexual
abuse of a child involving the female breast of K.C. and H.P.?
3. Was there sufficient evidence of sexual contact with the breasts
of L.D., age eighteen, or that any accidental or incidental
contact was without consent?
4. Was there sufficient evidence to support the convictions for an
“Offer to Transfer Marijuana?”
(Id. at 31.) The State filed an Answering Brief, arguing that Petitioner’s sentence and
convictions should be affirmed, because sufficient evidence supported each of Fulcher’s
convictions. (Id. at 75-126.) On September 9, 2021, the Court of Appeals affirmed
Petitioner’s convictions and sentences. (Id. at 130-137.) The Court of Appeals found that
sufficient evidence supported each of Petitioner’s convictions: molestation, sexual abuse
in each instance, and offer to transfer marijuana in both instances. (Id. at 135-136.)
Petitioner did not file a motion for reconsideration or petition for review of the Court of
Appeals’ decision, and the Court of Appeals issued its Mandate on October 25, 2021. (Id.
at 139.)
C. State Post-Conviction Relief Proceeding
Petitioner initiated his first Post-Conviction Relief (“PCR”) proceeding in Mohave
Superior Court on September 21, 2021 by filing a Notice of PCR. (Doc. 11-1 at 141.) The
Superior Court assigned counsel for Petitioner’s PCR proceedings on October 25, 2021.
(Id. at 146.) On March 23, 2022, Petitioner’s PCR Counsel filed a Petition certifying that
after reviewing the record, he could find no colorable claims to be presented and requested
4 Petitioner listed each of these issues under the larger subheading of: “Was there insufficient
evidence to support the verdicts?” (Doc. 11-1 at 31.)
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that the Superior Court grant Petitioner sixty days to file a supplemental petition. (Id. at
149-156.) The Superior Court granted this request on March 28, 2022 and ordered that
PCR counsel remain on the case in an advisory capacity. (Doc. 11-2 at 2-3.)
Petitioner timely5 filed his Supplemental Petition for PCR on February 23, 2023.
(Doc. 11-2 at 5-45.) Petitioner raised the following claims:
A. Was [Petitioner] denied his fundamental right to due process, as guaranteed by
Article II, Section 4 of the Arizona Constitution and[] the 5th and 14th
Amendments of the United States Constitution when
1. this Court permissively allowed the predetermination of guilt;
2. this Court improperly applied the term “breast”; and,
3. the State failed to disclose
a) available information; and,
b) exculpatory/impeachment evidence?
B. Was [Petitioner] denied effective assistance of counsel, as guaranteed by Article
II, Sections 4 and 24 of the Arizona Constitution and, the 5th, 6th and 14th
Amendments of the United States Constitution, when Defense Counsel failed to
1. object to the improper use of the term “victim”;
2. investigate exculpatory/impeachment evidence; and,
3. properly prepare for trial?
(Id. at 7.)
The Superior Court issued an Order6 on February 27, 2023 denying Petitioner’s
claims regarding the use of the term “victim” (claim A.1.) and regarding the definition of
the word “breast” (claim A.2.) because the Superior Court determined these facts and issues
of law had already been litigated at trial or on direct appeal. (See Doc. 11-2 at 47-48.) As
the same judicial officer who had conducted the bench trial and presided over the matter,
the Superior Court found that “[t]his Court is aware of the factors that influenced its
5 Respondents identify that Petitioner “received several extensions” to file his pro se PCR
Petition in Superior Court. (Doc. 11 at 4.) It does not appear that each of these “extensions” are in
the record before this Court, save for one extension provided by Petitioner (see Doc. 1 at 65); (see
also Doc. 11-2 at 39). However, because the issue of timeliness is not raised by either Respondents
or the Superior Court (see Docs. 11 at 4; 11-4 at 13-14), undersigned will assume that the PCR
Petition was timely filed.
6 During the time between Petitioner’s PCR Notice and Supplemental Petition filing,
Petitioner requested disclosure of certain documents and the Superior Court conducted an in
camera review, at the State’s request, of five police reports potentially related to the matter. (Doc.
1 at 65-66.) The Superior Court found that two of the five disputed reports contained information
that could lead to evidence that could potentially be relevant to a possible Rule 32 petition and
ordered disclosure of those two reports. (Id.)
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decision” and that therefore the State’s use of the term “victim” did not influence the
Court’s decision. (Id.) The Superior Court found that the remaining claims “could
potentially warrant relief under Rule 32” and thus ordered the State to file a Response to
them. (Id.) The State filed a Response opposing the Petition, to which Petitioner filed a
Reply. (Doc. 11-3 at 2-72; Doc. 11-4 at 2-22.) On June 19, 2023, the Superior Court found
good cause to set an evidentiary hearing regarding the PCR Petition.7 (Doc. 11-4 at 24.)
The Superior Court held evidentiary hearings on September 15 and November 3,
2023. (Doc. 11-4 at 27-28; 57-62.) Following the presentation of evidence and testimony
by witnesses, the Superior Court found that each argument presented by the Petitioner was
unfounded and denied Petitioner’s Rule 32 motion. (Id.); (see also id. at 215-222.)
D. Appeal of PCR Petition
After being granted extended time, Petitioner filed on February 29, 2024 a Petition
for Review of the Superior Court decision in the Court of Appeals. (Doc. 11-4 at 36-96.)
Petitioner raised the following issues on appeal:
A. Did the [PCR] Court abuse its discretion by failing to
adequately address the predetermination of guilt.
B. Did the [PCR] Court abuse its discretion[] by failing to
adequately address the State’s failure to
1. file and disclose evidence; and,
2. disclose exculpatory/impeachment evidence.
C. Did the [PCR] Court deny [Petitioner] due process as
guaranteed by Article II, Section 4 of the Arizona Constitution
and[] the 5th and 14th Amendments of the United States
Constitution, when it
1. failed to maintain decorum, resulting in a meaningless
and unfair evidentiary hearing; and,
2. denied a request to have Advisory Counsel reinstated as
Counsel of Record for the evidentiary proceedings.
(Id. at 37-38.) The State filed a brief Response in opposition. (Id. at 98-99.) The Court of
Appeals granted review but denied relief on June 18, 2024. (Id. at 105-108.) The Court of
7 Prior to the evidentiary hearing, the Superior Court denied Petitioner’s request to reinstate
PCR Counsel, but clarified that PCR Counsel had to continue to act in an advisory capacity for
Petitioner, including being present at the evidentiary hearing. (Doc. 11-4 at 88-89.)
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Appeals found that Petitioner’s allegations as to the improper use of the term “victim”
during trial (claim A) and his claim alleging Brady8 violations (claim B) were precluded
from review. (Id. at 106-107.) The court reasoned that the claims were raised pursuant Ariz.
R. Crim. P. Rule 32.l(a), and thus Petitioner was required to, but failed to, present them on
appeal under Ariz. R. Crim. P. 32.2(a)(3). (Id. at 107.) Additionally, the Court of Appeals
noted that any claims Petitioner raised solely to the Superior Court but not included in his
Petition for Review9 were waived pursuant to Ariz. R. Crim. P. 32.16(c)(2)(D). (See id. at
107 n.1.) The Court of Appeals also rejected Petitioner’s allegations that the trial court
failed to maintain decorum, finding that either the Petitioner did not object to the witness’
behavior at the hearing, or the trial court ruled on objections when they were presented.
(See id. at 107-108.) Finally, the Court of Appeals rejected Petitioner’s claim that the trial
court improperly denied his request to reappoint PCR counsel, finding that the trial court
did not abuse its discretion. (Id.)
Petitioner filed a Petition for Review of the Court of Appeals’ decision on August
8, 2024 in the Arizona Supreme Court. (Doc. 11-4 at 110-132.) Petitioner raised the
following issues:
Did the Appellate Court abuse its discretion by precluding
[Petitioner] from raising claims of,
I. predetermination of guilt; and,
II. [Ariz. R. Crim. P.] 15.1 violations
a) Failure to File and Disclose Evidence; and,
b) Failure to Disclose Exculpatory/Impeachment
Evidence
(Id. at 112.) After the Arizona Supreme Court summarily denied Petitioner’s Petition for
Review on December 16, 2024, the Court of Appeals issued its Mandate on February 21,
2025. (Id. at 134, 136.) Finally, Petitioner submitted a writ of certiorari to the Supreme
8 Brady v. Maryland, 373 U.S. 83 (1963).
9 The claims raised solely in Petitioner’s PCR Petition to Superior Court and not raised in
his Petition for Review appear to be (1) Petitioner’s argument that he was denied his fundamental
right to due process when the trial court improperly applied the term “breast” (claim A.2. in PCR
Petition); (2) Petitioner’s claim that he was denied effective assistance of counsel when defense
counsel failed to object to the improper use of the term “victim,” investigate
exculpatory/impeachment evidence, and properly prepare for trial (claim B in PCR Petition). (See
Docs. 11-2 at 7; 11-4 at 37-38.)
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Court of the United States, which was denied on May 19, 2025. (Doc. 1 at 87.)
E. Summary of Matters Preceding the Instant Federal Petition
In summary, Petitioner filed a Direct Appeal of his conviction in the Court of
Appeals, which was denied. (Doc. 11-1 at 21-22; 30-73; 130-139.) Petitioner then filed a
PCR Petition in Superior Court, which was initially granted an evidentiary hearing on the
issues of Brady material and ineffective assistance of counsel. (Docs. 11-1 at 141, 146-
156; 11-2 at 2-48; 11-3 at 2-72; 11-4 at 24-28; 57-62.) Following the evidentiary hearing,
the PCR Petition was denied. (Doc. 11-4 at 27-28; 57-62; 215-222.) Petitioner submitted a
Petition of Review to the Court of Appeals (id. at 36-96), which was denied (id. at 105-
108). Petitioner finally submitted a Petition of Review to the Arizona Supreme Court (id.
at 110-132), and a writ of certiorari to the U.S. Supreme Court (Doc. 1 at 87), which were
both denied (Doc. 11-4 at 134; Doc. 1 at 87).
II. Instant Federal Proceeding
On July 1, 2025, Petitioner filed a Petition for Writ of Habeas Corpus10 with this
Court pursuant to 28 U.S.C. § 2254 (Doc. 1). The Court has previously summarized the
claim raised in the Petition as follows:
Petitioner raises four grounds for relief, alleging his due
process rights were violated when the trial court “permissively
allowed the predetermination of guilt” by permitting the use of
the term “victim” (Ground One) and “failed to maintain
decorum” (Ground Four) and the State “failed to file and
disclose information to the defense” (Ground Two) and “failed
to disclose exculpatory/impeachment evidence” (Ground
Three).
(Doc. 5 at 2.) Respondents timely filed a Limited Answer to Petition for Writ of Habeas
Corpus on September 18, 2025, following an extension of time. (Doc. 11.) Petitioner timely
filed a Reply to State’s Limited Answer to Petition for Writ of Habeas Corpus on January
10 Respondents concede that Petitioner’s writ is timely. (See Doc. 11 at 7.) Because the
Petition on its face appears timely and Respondents concede the Petition is timely, undersigned
will not analyze the issue of timeliness in this Report and Recommendation. (See id.; Doc. 1.)
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6, 2026, following an extension of time granted by this Court. (Doc. 14.)
ANALYSIS
The writ of habeas corpus affords relief to persons in custody pursuant to the
judgment of a state court in violation of the Constitution, laws, or treaties of the United
States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for habeas corpus are governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244.
I. Exhaustion
Respondents argue in their Limited Answer that Grounds One, Two, and Three
should be denied and dismissed because they are technically exhausted but procedurally
defaulted. (Doc. 11 at 7-11.) Respondents argue that the Court of Appeals applied an
express procedural bar to Grounds One, Two, and Three and as such the claims have not
passed the exhaustion requirement such that they may be considered under federal habeas
corpus review. (See id.) In Reply, Petitioner asserts that the claims in Grounds One, Two,
and Three are not procedurally barred because the PCR Court considered the claims. (Doc.
14 at 3-4.) Petitioner argues that the PCR Court rejected the use of the term “victim”
because it had already been adjudicated on the merits at trial (Ground One) and held an
evidentiary hearing to consider the other matters (Grounds Two and Three). (Id. at 4.)
Petitioner posits that the PCR Court “show[ed] an acute awareness that the preclusionary
rule does not apply” by considering these Grounds. (Id.) Petitioner further asserts that the
PCR Court “possessed the most detailed, reliable facts” and thus was “best suited to assess
whether preclusion under [Ariz. R. Crim. P.] 32.2 existed.” (Id.) Petitioner finally argues
that each of his claims in Grounds One, Two, and Three “raised a constitutional violation
of due process” and, appears to claim as such, that the Court of Appeals improperly
dismissed the claims procedurally without considering “the exception” in Ariz. R. Crim.
P. 32.2(a)(3). (See id. at 7.)
A. Standard of Review
To seek federal habeas review, a state prisoner must also exhaust the available state
remedies. 28 U.S.C. § 2254(b)(1)(A). To exhaust state remedies, a petitioner must afford
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the state courts the opportunity to rule upon the merits of his federal claims by “fair[ly]
present[ing]” them “in each appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court to the federal nature of the
claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364,
365-366 (1995); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). In other words, proper
exhaustion requires a petitioner to “give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate
review process.” Date v. Schriro, 619 F. Supp. 2d 736, 762 (D. Ariz. 2008) (quoting
O’Sullivan, 526 U.S. at 845).
Under controlling case law, fair presentment of a claim requires a court to engage
in a two-prong analysis. See Rose v. Palmateer, 395 F.3d 1108, 1111 (9th Cir. 2005). First,
a court must consider whether the petitioner invoked “one complete round” of the state’s
established review process for any claim raised on federal habeas review. See O’Sullivan,
526 U.S. at 845. The court then must determine whether the petitioner pled the federal
nature of the claim with “considerable specificity” before the state courts. See Rose, 395
F.3d at 1111; see also Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (holding
“[a] petitioner fairly and fully presents a claim to the state court for purposes of satisfying
the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through
the proper vehicle, and (3) by providing the proper factual and legal basis for the claim”)
(internal citations omitted).
1. Proper Forum and Proper Vehicle
“To exhaust state remedies, a petitioner must afford the state courts the opportunity
to rule upon the merits of his federal claims by ‘fairly presenting’ them to the state’s
‘highest’ court in a procedurally appropriate manner.” Date, 619 F. Supp. 2d at 762 (first
quoting Castille v. Peoples, 489 U.S. 346, 349 (1989); then quoting Baldwin, 541 U.S. at
29). In non-capital cases arising in Arizona, the “highest court” requirement is satisfied by
fair presentation to the Arizona Court of Appeals either on direct appeal or in a petition for
post-conviction relief. Date, 619 F. Supp. 2d at 762 (citing Crowell v. Knowles, 483 F.
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Supp. 2d 925 (D. Ariz. 2007)). Thus, claims from Arizona state prisoners “are exhausted
for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”
Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). However, “to exhaust a habeas
claim, a petitioner must properly raise it on every level of direct review.” Casey v. Moore,
386 F.3d 896, 916 (9th Cir. 2004). This means that a petitioner who raises federal claims
for the first and only time to the state’s highest court does not fairly present the claims. Id.
at 918.
“To exhaust one’s state court remedies in Arizona, a petitioner must first raise the
claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction
relief pursuant to Rule 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); see also
Castillo v. McFadden, 399 F.3d 993, 997-1000 (9th Cir. 2005) (analyzing claims raised on
direct appeal where state prisoner directly appealed but did not pursue PCR proceedings in
state court). Only one of these avenues of relief in state court must be exhausted before
bringing a habeas petition in federal court. Brown v. Easter, 68 F.3d 1209, 1211 (9th Cir.
1995); Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987), cert. denied, 489 U.S. 1059
(1989). However, “[s]ubmitting a new claim to the state’s highest court in a procedural
context in which its merits will not be considered absent special circumstances does not
constitute fair presentation.” Roettgen, 33 F.3d at 38 (citing Castille, 489 U.S. at 351).
2. Specificity of Federal Basis
In addition to presenting his claims to the proper court and via the proper vehicle, a
state prisoner must fairly present his claims to the state court by describing both the
operative facts and the federal legal theory on which his claims are based. See Date, 619
F. Supp. 2d at 764; Baldwin, 541 U.S. at 33; Duncan, 513 U.S. at 365-66 (holding
petitioners must fairly present federal claims to state courts in order to give the state the
“opportunity to pass upon and correct” alleged violations of federal rights, which requires
petitioners to alert the state courts that they are asserting claims under the federal
Constitution) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).
In the Ninth Circuit, petitioners “must make the federal basis of the claim explicit
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either by specifying particular provisions of the federal Constitution or statutes, or by citing
to federal case law. While the petitioner must refer to federal law in state court explicitly,
exhaustion is satisfied once the petitioner makes that explicit reference even if the
petitioner relies predominantly on state law before the state courts.” Insyxiengmay, 403
F.3d at 668 (internal citations omitted); see also Picard, 404 U.S. at 278 (holding fair
presentation of a claim in state courts requires petitioners to present the state courts with
the “substantial equivalent” of the claim raised in federal court). To exhaust his claim,
Petitioner “must have presented his federal, constitutional issue before the Arizona Court
of Appeals within the four corners of his appellate briefing.” Castillo, 399 F.3d at 1000
(citing Baldwin, 541 U.S. at 32).
3. Procedural Default
A federal habeas claim is not exhausted if the petitioner still has the right to raise
the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). “A habeas
petitioner’s claims may be precluded from federal review in either of two ways.” Date, 619
F. Supp. 2d at 765. A claim may be procedurally defaulted in federal court if: (1) “it was
actually raised in state court but found by that court to be defaulted on state procedural
grounds[,]” or (2) “a state prisoner failed to present his federal claims to the state court, but
returning to state court would be ‘futile’ because the state courts’ procedural rules, such as
waiver or preclusion, would bar consideration of the previously unraised claims.” Id.
(internal citations omitted). An “express” procedural bar exists if the state court denies or
dismisses a claim based on a procedural bar “that is both ‘independent’ of the merits of the
federal claim and an ‘adequate’ basis for the court’s decision.” Harris v. Reed, 489 U.S.
255, 260 (1989) (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935); Murdock v.
City of Memphis, 87 U.S. 590, 635-636 (1875)). An “adequate” procedural rule is one that
is “strictly or regularly followed[.]” Johnson v. Mississippi, 486 U.S. 578, 587 (1988)
(citations omitted). A procedural bar is “independent” when it does not depend on a federal
constitutional ruling on the merits. Stewart v. Smith, 536 U.S. 856, 859 (2002).
Federal courts are barred from reviewing claims that were decided on independent
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and adequate state law grounds. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).
“This rule applies whether the state law ground is substantive or procedural.” Id. at 729
(citations omitted). “When more than one state court has adjudicated a claim, we analyze
the last reasoned decision.” Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing
Ylst v. Nunnemaker, 501 U.S. 797, 803-804 (1991); Avila v. Galaza, 297 F.3d 911, 918
(9th Cir. 2002)).
An implied procedural bar can occur when a claim was not actually exhausted in
state court, but the petitioner no longer has an available state remedy. Date, 619 F. Supp.
2d at 766; see also Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). “Generally,
any claim not previously presented to the Arizona courts is procedurally barred from
federal review because any attempt to return to state court to properly exhaust a current
habeas claim would be ‘futile.’” Van Norman v. Schriro, 616 F. Supp. 2d 939, 949 (D.
Ariz. 2007), aff’d, 362 F. App’x 597 (9th Cir. 2010) (citations omitted). A claim may be
“futile” in Arizona based on waiver, preclusion, or timeliness. See Arizona Rules of
Criminal Procedure 32.1(b)-(h), 32.2(a) & (b), 33.1 (b)-(h), 32.4(a) & (b).
If a petitioner failed to exhaust his claim and is now barred from returning to state
court to present his claim, then his claim is procedurally defaulted and barred from federal
habeas corpus review. See Coleman, 501 U.S. at 735 n.1 (citations omitted). A petitioner
can overcome procedural default, and thus bar of his claim, only by showing cause for the
default and resulting prejudice or that a fundamental miscarriage of justice will result from
the denial. Id. at 750. The “fundamental miscarriage of justice” exception is “explicitly
tied” to the “petitioner’s innocence.” Schlup v. Delo, 513 U.S. 298, 321 (1995). To show a
fundamental miscarriage of justice, or “actual innocence,” a petitioner must demonstrate
that “in light of all the evidence, it is more likely than not that no reasonable juror would
have convicted him.” Bousley, 523 U.S. at 623 (quoting Schlup, 513 U.S. at 327-328).
Under this standard, “actual innocence” means “factual innocence, not mere legal
insufficiency.” Id. (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).
//
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B. Analysis
1. Petitioner’s Claims in Grounds One, Two, and Three
Petitioner asserts in Ground One that he was “denied his fundamental right to due
process, as guaranteed by Article II[] § 4 of the Arizona Constitution and[] the 5th and 14th
Amendments of the United States Constitution, when the [trial] [c]ourt permissively
allowed the predetermination of guilt.” (Doc. 1 at 10.) Petitioner argues that the State
improperly referred to the “accusers” as “victims” during trial, thereby “foster[ing] [a]
[p]redetermination of [g]uilt[.]” (Id. at 14.) Petitioner also discusses the legislative history
of the word “victim” in Arizona law to support his argument. (Id. at 10-15.) Petitioner
asserts that he raised the issue in Ground One to the Arizona Court of Appeals in his first
PCR petition and to the Arizona Supreme Court. (Id. at 10.)
In Ground Two, Petitioner alleges that he was “denied his fundamental right to due
process, as guaranteed by Article II[] § 4 of the Arizona Constitution and[] the 5th and 14th
Amendments of the United States Constitution, when the State failed to file and disclose
information to the defense. (Doc. 1 at 16.) Petitioner asserts that the “Pretrial Prosecutor .
. . and Trial Prosecutor . . . made absolutely no disclosures, pursuant to [Ariz. R. Crim. P.]
15.1(a)(b), 15.6 in this case[.]” (Id.) Petitioner cites to instances in the record where, he
asserts, “[c]learly, the Mohave County Attorney’s Office has demonstrated a propensity to
disregard [Ariz. R. Crim. P.] 15.1(a)(b), 15.6.” (Id. at 17-18) Petitioner avers that he raised
the issues in Ground Two in the Court of Appeals in his “First petition” and that he
presented the issues to the Arizona Supreme Court. (Id. at 16.)
Petitioner alleges in Ground Three that he was denied his due process rights, “as
guaranteed by Article II[] § 4 of the Arizona Constitution and[] the 5th and 14th
Amendments of the United States Constitution when the State failed to disclose
exculpatory/impeachment evidence.” (Doc. 1 at 19.) From what the Court can gather,
Petitioner argues that because the State did not disclose two police reports during the course
of trial discovery, which were determined by the PCR court to be “potentially relevant to
a Rule 32 Petition[,]” his due process rights were violated. (See id.) Petitioner alleges that
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the incidents described in the police report show that one of the victims “has a propensity
to cultivate, either through initiating or instigating, inappropriate internet relationship[s]
with strange men.” (Id. at 20.) Petitioner asserts that he raised the issues that he presented
in Ground Three before both the Court of Appeals, in his first PCR Petition, and the
Arizona Supreme Court. (Id. at 19.)
2. Application of Law
As discussed above, to be considered pursuant to 28 U.S.C. § 2254, a petitioner
must have exhausted a claim by properly presenting the claim in state court. See Date, 619
F. Supp. 2d at 762. Here, Petitioner challenged his conviction state court in multiple ways.
Petitioner filed a direct appeal (Doc. 11-1 at 30-73) in the Court of Appeals, a PCR Rule
32 Petition (Doc. 11-2 at 5-45) in the Superior Court, and corresponding Petitions for
Review in the Court of Appeals (Doc. 11-4 at 36-96) and Arizona Supreme Court (Doc.
11-4 at 110-132). Therefore, Petitioner used an appropriate forum and an appropriate
vehicle to present his claims to the “state’s highest court in a procedurally appropriate
manner.” See Date, 619 F. Supp. 2d at 762. Additionally, Petitioner alleged his claims
pursuant to both state and federal law on the face of his PCR Petition and Petitions for
Review. (See Docs. 11-2 at 7; 11-4 at 36-96; 110-132) (Petitioner alleged his due process
rights were violated pursuant to the Arizona and U.S. Constitutions). Petitioner thus made
explicit reference to federal law and raised allegations of constitutional infringements on
the four corners of his appellate briefing. See Insyxiengmay, 403 F.3d at 668; Castillo, 399
F.3d at 1000. Therefore, Petitioner met the “fair presentment” requirement for exhaustion.
See Rose, 395 F.3d at 1111.
However, even if a petitioner properly presented the claims, the claim is
procedurally defaulted if the last reasoned state court decision relied on an adequate and
independent basis, supported by state procedural or substantive rules, in denying relief. See
Coleman, 501 U.S. at 729-730; Barker, 423 F.3d at 1091. Here, the last reasoned state court
decision was the Court of Appeals’ dismissal of Petitioner’s Petition for Review. (Doc. 11-
4 at 105-108.) In reaching its decision, the Court of Appeals concluded in part that
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Petitioner was raising three issues that were not properly raised on appeal and were thus
precluded from review pursuant to Ariz. R. Crim. P. 32.3(a)(3). (Id. at 106-107)
(“[Petitioner] contends the trial court abused its discretion by
‘failing to adequately address’ his claim related to the use of
the word ‘victim’ at trial and his claim that the state had
violated Rule 15.1, Ariz. R. Crim. P., and the requirements of
Brady. But [Petitioner’s] claim as to the use of the word
‘victim’ and his claim pursuant to Brady are both claims raised
under Rule 32.1(a), and are therefore precluded due to the
failure to raise them on appeal. See Ariz. R. Crim. P.
32.2(a)(3).”)
The Court of Appeals thus dismissed on state procedural grounds Petitioner’s claims (1)
arguing improper use of the word “victim” (Ground One); (2) arguing failure to comply
with Ariz. R. Crim. P. 15.1 (Ground Two)11; and (3) arguing failure to comply with Brady
requirements (Ground Three). (Id.)
The state procedural rule applied by the Court of Appeals, Ariz. R. Crim. P.
32.2(a)(3), sets forth that certain claims may be waived if not raised at trial or on appeal,
except when the claim raises a violation of a constitutional right that can only be
knowingly, voluntarily, or personally waived. The Supreme Court has found that “Rule
32.2(a)(3) determinations are independent of federal law because they do not depend upon
a federal constitutional ruling on the merits.” Stewart, 536 U.S. at 860. Ariz. R. Crim. P.
32.3(a)(3) has been “firmly established and consistently followed,” thus establishing an
adequate state procedural ground barring federal habeas review. Murray v. Schriro, 745
F.3d 984, 1016 (9th Cir. 2014); see also Johnson, 486 U.S. at 587 (“[A] state procedural
ground is not ‘adequate’ unless the procedural rule is ‘strictly or regularly followed.’”)
(internal citations omitted). While Petitioner has argued that the Court of Appeals abused
11 As Respondents correctly identify, the Court of Appeals does not specifically dismiss the
alleged Rule 15.1 violation in its analysis of the procedural bar. (See Docs. 11 at 11; 11-4 at 106-
107.) Based on the Court of Appeals’ reference to the Rule 15.1 claim in the prior sentence, and
the fact that the Court of Appeals does not otherwise address this claim in its Memorandum, it
appears that the Court of Appeals implicitly denied this claim pursuant to state procedural law
Ariz. R. Crim. P. 32.2(a)(3). (See id.) However, because it is not explicit in the Court of Appeals’
decision, undersigned will analyze Ground Two pursuant to an express procedural bar and
cognizability. (See id.)
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its discretion and improperly dismissed his claims under Ariz. R. Crim. P. 32.2(a)(3)
without considering “the exception” (see Doc. 14 at 7-8), this Court will not inquire into
an adequate and independent state court determination of state procedural law. See Poland
v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) (“Federal habeas courts lack jurisdiction . . .
to review state court applications of state procedural rules.”) (internal citations omitted).
Because the last reasoned state court decision, see Barker, 423 F.3d at 1091, relied
on adequate and independent procedural grounds to dismiss the claims corresponding to
Grounds One, Two, and Three, an express procedural bar prohibits this Court’s review. See
Coleman, 501 U.S. at 729 (“This Court will not review a question of federal law decided
by a state court if the decision of that court rests on a state law ground that is independent
of the federal question and adequate to support the judgment.”)
Furthermore, Petitioner cannot overcome the procedural default because he has not
shown cause for the default and resulting prejudice, or that a fundamental miscarriage of
justice would result from the denial of his Petition. (See Docs. 1, 14); see Coleman, 501
U.S. at 750. Petitioner has not pled or argued in either his Petition or Reply that he may
overcome the procedural bar with a showing of cause or actual innocence. (See Docs. 1,
14). Rather, Petitioner argues that the procedural bar was improperly placed by the Court
of Appeals, a determination which this Court may not review. See Poland, 169 F.3d at 584.
Accordingly, undersigned will recommend denying Grounds One, Two, and Three as
technically exhausted but procedurally defaulted based on an express procedural bar
applied by the Court of Appeals pursuant to Ariz. R. Crim. P. 32.2(a)(3). (See Doc. 11-4 at
105-108.)
II. Cognizability
Respondents argue that Grounds Two and Four of the Petition are non-cognizable
upon federal habeas review. (See Doc. 11 at 11-13.) Respondents assert that the claims
allege default with the application of state law or state post-conviction review process,
which are not addressable through federal habeas relief. (See id.) Petitioner does not
address the issue of cognizability in his Petition or Reply. (See Docs. 1, 14.)
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A. Standard of Review
28 U.S.C. § 2254(a) provides that a federal court may issue a writ of habeas corpus
to a state prisoner “only on the ground that he is in custody in violation of the Constitution,
laws, or treaties of the United States.” “In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991) (citations omitted). “[I]t is not
the province of a federal habeas court to reexamine state-court determinations on state-law
questions.” Id. at 67-68. “A habeas petition must allege the petitioner’s detention violates
the constitution, a federal statute, or a treaty.” Franzen v. Brinkman, 877 F.2d 26, 26 (9th
Cir. 1989) (citations omitted). “We have stated many times that ‘federal habeas corpus
relief does not lie for errors of state law.’” Estelle, 502 U.S. at 67 (quoting Lewis v. Jeffers,
497 U.S. 764, 780 (1990)).
B. Analysis
1. Grounds Two and Four
In Ground Two12, Petitioner argues that he was “denied his fundamental right to due
process” under the Arizona and U.S. Constitutions when the State failed to file and disclose
information to the defense pursuant to Ariz. R. Crim. P. 15.1(a)(b) and 15.6. (Doc. 1 at 16-
18.) Petitioner asserts that he raised the issues in Ground Two both in the Court of Appeals,
in his First PCR Petition, and to Arizona Supreme Court. (Id. at 16.)
Petitioner in Ground Four raises the claim that he was denied his due process rights
pursuant to “Article II[] § 4 of the Arizona Constitution and[] the 5th and 14th Amendments
of the United States Constitution” when the PCR Court “failed to maintain decorum.” (Doc.
1 at 21.) Petitioner argues that the PCR court at the PCR evidentiary hearing permitted a
witness to give “elusive, argumentative, rude, and insulting testimony[.]” (Id.) Petitioner
did not complete the section of the habeas petition form indicating whether or not he had
presented this issue to the Court of Appeals or the Arizona Supreme Court. (See id.)
12 As discussed supra in n.11, because it is unclear whether the Court of Appeals dismissed
the claims corresponding to Ground Two in the Petition on state procedural grounds (see Doc. 11-
4 at 106-107), undersigned will also examine this claim under cognizability.
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2. Application of Law
Ground Two asserts that Petitioner’s constitutional rights were infringed upon when
the State failed to disclose documents pursuant to state procedural laws. (Doc. 1 at 16-18.)
While Petitioner cites to the federal (and state) constitutions to support the claim that his
due process rights were violated, “the Due Process Clause has little to say regarding the
amount of discovery which the parties must be afforded[.]” See Wardius v. Oregon, 412
U.S. 470, 474 (1973). Petitioner’s bare citation to the Due Process Clause while alleging
the State failed to adhere to state disclosure obligations is insufficient “to allege the
petitioner’s detention violates the constitution, a federal statute, or a treaty.” See Franzen,
877 F.2d at 26; see also Marshall v. Lonberger, 459 U.S. 422, 438 at n.6 (1983) (“the Due
Process Clause does not permit the federal courts to engage in a finely-tuned review of the
wisdom of state evidentiary rules”). It appears, rather, Petitioner is challenging the State’s
adherence to state disclosure obligations. (See Doc. 1 at 16-18) (“[the State] made
absolutely no disclosures pursuant to [Ariz. R. Crim. P.] 15.1(a)(b), 15.6 in this case”);
(“[the State] has demonstrated a propensity to disregard [Ariz. R. Crim. P.] 15.1, 15.6”).
However, federal habeas review “does not lie for errors of state law.” See Estelle, 502 U.S.
at 67. Accordingly, to the extent that Ground Two is not procedurally defaulted, it is not
cognizable on review by this Court.
In Ground Four of the Petition, Petitioner challenges the constitutionality of his PCR
evidentiary hearing. (Doc. 1 at 21.) The Ninth Circuit has consistently held that “federal
habeas relief isn’t available to redress alleged errors in state post-conviction proceedings.”
Carriger v. Stewart, 95 F.3d 755, 763 (9th Cir. 1996) (citations omitted) (vacated on other
grounds in Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997)); see also Franzen, 877 F.2d
at 26 (“[A] petition alleging errors in the state post-conviction review process is not
addressable through habeas corpus proceedings.”); see also Silversky v. Frink, 500 F.
App’x 625, 626 (9th Cir. 2012) (“A federal habeas petition is not the proper vehicle for
addressing the adequacy of process provided to [petitioner] in state post-conviction
proceedings.”) Because Petitioner’s arguments in Ground Four are entirely related to the
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constitutionality of the state-post conviction proceedings, the claims are “not addressable”
by this Court. See Franzen, 877 F.2d at 26. Accordingly, undersigned will recommend the
claims in Grounds Two and Four be dismissed as not cognizable on habeas review.
III. Conclusion and Leave to Amend
“[A] petition for habeas corpus should not be dismissed without leave to amend
unless it appears that no tenable claim for relief can be pleaded were such leave granted.”
Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (citations omitted). A petition for habeas
corpus may be amended pursuant to the Federal Rules of Civil Procedure. 28 U.S.C. §
2242; Rule 12, Rules Governing Section 2254 Cases. Federal Rule of Civil Procedure 15(a)
applies to a party’s motion to amend a pleading in a habeas corpus proceeding. James v.
Pliler, 269 F.3d 1124, 1126 (9th Cir. 2001); see also Local Rule of Civil Procedure
(“LRCiv”) 15.1. Leave to amend shall be freely given “when justice so requires.” Fed. R.
Civ. P. 15. A court may deny leave to amend if it finds undue delay, bad faith, repeated
failures to cure deficiencies, undue prejudice to the opposing party, or futility of
amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). “Futility of amendment can, by
itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815,
845 (9th Cir. 1995). A claim can be futile when the legal basis is tenuous or when a
petitioner has failed to exhaust state remedies. Caswell v. Calderon, 363 F.3d 832, 837 (9th
Cir. 2004) (citations omitted).
Here, Petitioner has not requested that he be provided leave to amend should his
Petition be deficient. (See Docs. 1, 14.) Even without that request, undersigned considers
whether “justice so requires” leave to amend. See Fed. R. Civ. P. 15(a); see also Lopez v.
Smith, 203 F.3d 1122 (9th Cir. 2000) (“[A] district court should grant leave to amend even
if no request to amend the pleading was made, unless it determines that the pleading could
not possibly be cured by the allegation of other facts.”) (citations omitted).
For the reasons described supra, Petitioner’s claims in Grounds One, Two, and
Three are technically exhausted but procedurally defaulted because the Court of Appeals
applied an express procedural bar to those claims. Petitioner cannot overcome the
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procedural default with these claims because he has not shown cause for the default and
resulting prejudice or that a fundamental miscarriage of justice would result from the
denial. See Coleman, 501 U.S. at 750. Thus, leave to amend for these claims would be
futile, as no tenable claim for habeas corpus relief could be pleaded with regard to these
claims. See Jarvis, 440 F.2d at 14. Additionally, Grounds Two and Four of the Petition are
not reviewable by this Court. Ground Two raises an objection pursuant to state criminal
procedure law, and Ground Four challenges the constitutionality of the state PCR
proceeding, both of which are not addressable through federal habeas review. See Estelle,
502 U.S. at 67; see Franzen, 877 F.2d at 26. Because there is no adequate legal basis for
Grounds Two and Four under 28 U.S.C. § 2254(a), leave to amend would be futile. See
Caswell, 363 F.3d at 837. Accordingly, undersigned will recommend the Petition be denied
without leave to amend.
CONCLUSION
The Court concludes Petitioner is not entitled to relief on any ground raised in his
habeas petition. The record is sufficiently developed, and undersigned does not find that
an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638
F.3d 1027, 1041 (9th Cir. 2011). Accordingly,
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH
PREJUDICE and without leave to amend.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave
to proceed in forma pauperis on appeal be DENIED because Petitioner has not shown
jurists of reason would not find the procedural ruling debatable, and because Petitioner has
not made a substantial showing of the denial of a constitutional right.
This Report and Recommendation is not an order that is immediately appealable to
the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal
Rules of Appellate Procedure, should not be filed until entry of the District Court’s
judgment. The parties shall have fourteen days from the date of service of a copy of this
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Report and Recommendation within which to file specific written objections with the
Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties
have fourteen days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report
and Recommendation. See Fed. R. Civ. P. 72.
Dated this 12th day of February, 2026.
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