3:25-cv-08142•Fulcher #345782 v. Thornell et al
Testo completo
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 1 of 23
- 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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). Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 2 of 23
- 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 3 of 23
- 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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.) Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 4 of 23
- 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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.) Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 5 of 23
- 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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.) Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 6 of 23
- 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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.) Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 7 of 23
- 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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.) Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 8 of 23
- 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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.) Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 9 of 23
- 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 10 of 23
- 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 11 of 23
- 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 12 of 23
- 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 13 of 23
- 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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)). // Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 14 of 23
- 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 15 of 23
- 16 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 16 of 23
- 17 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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.) Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 17 of 23
- 18 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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.) Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 18 of 23
- 19 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 19 of 23
- 20 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 20 of 23
- 21 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 21 of 23
- 22 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 22 of 23
- 23 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. Case 3:25-cv-08142-JAT Document 15 Filed 02/13/26 Page 23 of 23
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