Lopez v. Shinn

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Joseph Gabriel Lopez, No. CV-16-0670-TUC-BGM 10 Petitioner, 11 v. ORDER 12 David Shinn,1 et al., 13 Respondents. [14] 15 Currently pending before the Court is Petitioner Joseph Gabriel Lopez’s Petition 16 Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody 17 (Non-Death Penalty) (“Petition”) (Doc. 1). Respondents have filed a Limited Answer to 18 Petition for Writ of Habeas Corpus (“Answer”) (Doc. 10), and Petitioner replied (Doc. 19 15). The Petition is ripe for adjudication. [20] 21 I. FACTUAL AND PROCEDURAL BACKGROUND 22 A. Initial Charge and Sentencing 23 Petitioner was charged with one (1) count each of burglary in the first degree and 24 theft by control and three (3) counts of possession of a deadly weapon by a prohibited 25 possessor. Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case No. CR20073101, [26] 27 1 The Court takes judicial notice, that Charles Ryan is no longer the Director of the Arizona Department of Corrections (“AZDOC”). As such, the Court will substitute the Director 28 of the AZDOC, David Shinn, as a Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 1 Indictment (Exh. “A”) (Doc. 11) at 3–4.2 On May 30, 2008, the trial court granted 2 Petitioner’s motion to sever the prohibited possessor counts from the burglary and theft 3 by control charges. Id., Ariz. Superior Ct., Pima County, Case No. CR20073101, 4 Minute Entry 5/30/2008 (Exh. “B”) (Doc. 11) at 17. Following a jury trial, Petitioner 5 was found guilty of one (1) count of burglary in the first degree and one (1) count of theft 6 by control and/or by controlling stolen property with a value of at least $3,000 but less 7 than $25,000. Id., Ariz. Superior Ct., Pima County, Case No. CR20073101, Sentence of 8 Imprisonment (Exh. “C”) (Doc. 11) at 19, 21–22. On September 4, 2008, Petitioner was 9 sentenced to a partially aggravated term of imprisonment of twenty (20) years on the 10 burglary count and a concurrent partially aggravated term of imprisonment of eighteen 11 (18) years of imprisonment on the theft by control count.3 Id., Exh. “C” at 21–22. 12 B. Direct Appeal 13 On September 8, 2017, counsel for Petitioner filed a Notice of Appeal from the 14 judgment and sentence. Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case No. 15 CR20073101, Def.’s Not. of Appeal and Request for New Counsel 9/8/2017 (Exh. “D”) 16 (Doc. 11). On March 17, 2009, counsel for Petitioner filed an Anders4 brief with the 17 Arizona Court of Appeals.5 Id., Ariz. Ct. of Appeals, Case No. 2 CA-CR 2008-0311, [18] 2 Page citations refer to the CM/ECF page number for ease of reference. [19] 3 On the same date, Petitioner pled guilty to one (1) count of possession of a deadly 20 weapon by a prohibited possessor and sentenced to a concurrent, aggravated term of imprisonment of three (3) years. Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case No. [21] CR-20070021, Sentence of Imprisonment (Exh. “C”) (Doc. 11) at 19–20, 23. The trial court 22 granted the State’s motion to dismiss the remaining prohibited possessor counts. 4 Anders v. California, 386 U.S. 738 , 87 S. Ct. 1396 (1967). [23] 5 The Arizona Court of Appeals has described the procedure of filing an Anders brief as 24 follows: 25 Under our procedure, when appointed counsel determines that a defendant's case discloses no arguable issues for appeal, counsel files an Anders brief. The brief [26] contains a detailed factual and procedural history of the case, with citations to the 27 record. See Scott, 187 Ariz. at 478 n.4, 930 P.2d at 555 n.4. Counsel submits the brief to the court and the defendant. The defendant is then given the opportunity 28 to file a brief pro per. After receiving all briefing, the court reviews the entire record for reversible error. If any arguable issue presents itself, the court directs 1 Appellant’s Opening Br. 3/17/2009 (Exh. “E”) (Doc. 11). On November 5, 2009, the 2 Arizona Court of Appeals directed the State to file a brief “addressing whether appellant 3 was correctly convicted of a class three felony and whether fundamental error occurred.” 4 Id., Ariz. Ct. of Appeals, Case No. 2 CA-CR 2008-0311, Order 11/5/2009 (Exh. “F”) 5 (Doc. 11). Consistent with the appellate court’s direction, the State filed its Answering 6 Brief. Id., Ariz. Ct. of Appeals, Case No. 2 CA-CR 2008-0311, Appellee’s Answering 7 Br. (Exh. “G”) (Doc. 11). Petitioner did not file a pro se supplemental brief. 8 On December 29, 2009, the Arizona Court of Appeals affirmed the jury’s guilty 9 verdict, but modified Petitioner’s conviction as to Count 2, Theft by Control, vacated the 10 sentence as to that count, and remanded for resentencing. Id., Ariz. Ct. of Appeals, Case 11 No. 2 CA-CR 2008-0311, Mem. Decision 12/29/2009 (Exh. “H”) (Doc. 11). The court of 12 appeals observed that “count two of the indictment charged Lopez with theft by control 13 and/or controlling stolen property ‘with a value of $3,000 or more, but less than $25,000,’ 14 which it designated a class three felony.” Answer (Doc. 10), Exh. “H” at 62. The 15 appellate court noted that the verdict form, which was consistent with the indictment, 16 “included a special interrogatory asking the jury to determine the value of the property 17 Lopez had stolen.” Id., Exh. “H” at 62. “The jury marked the space on the interrogatory 18 indicating it had found the value of the property to be ‘[a]t least $3,000.00 but less than 19 $25,000.00.’” Id., Exh. “H” at 63 (alterations in original). The appellate court indicated 20 that “[w]hen Lopez committed the offense on August 2, 2007, A.R.S. § 13-1802(E) 21 provided that ‘[t]heft of property or services with a value of four thousand dollars or 22 more but less than twenty-five thousand dollars is a class 3 felony[,] . . . but [t]heft of [23] appointed counsel to brief the issue. Only after the court has ascertained that 24 counsel has conscientiously performed his or her duty to review the record, and 25 has itself reviewed the record for reversible error and found none, will the court allow counsel to withdraw. See State v. Shattuck, 140 Ariz. 582 , 584–85, 684 P.2d 26 154 , 156–57 (1984). We conclude that this procedure permits counsel to perform ethically, while simultaneously ensuring that an indigent defendant's 27 constitutional rights to due process, equal protection, and effective assistance of 28 counsel are protected. State v. Clark, 196 Ariz. 530, 537 , 2 P.3d 89, 96 (Ct. App. 1999). 1 property with a value of at least $3,000 but less than $4,000 was a class four felony.” 2 Answer (Doc. 10), Exh. “H” at 63 (citations omitted). The appellate court found that 3 “Lopez was sentenced for a class three felony without the jury having made a necessary 4 finding for that classification of the offense.” Id., Exh. “H” at 64 (citations omitted). 5 After reviewing the evidence presented at trial, the appellate court held that “if the jury 6 had known the state was required to establish the value of stolen property was $4,000, 7 rather than $3,000, it might not have found the state had sustained its burden.” Id., Exh. 8 “H” at 65–67. 9 As such, the court of appeals “modif[ied] Lopez’s conviction on count two, 10 reduce[d] the class of felony to a class four, vacate[d] the sentence on that count, and 11 remand[ed] th[e] matter to the trial court for resentencing on count two.” Id., Exh. “H” at 12 67. The court of appeals affirmed Petitioner’s convictions and sentences in all other 13 respects. Id., Exh. “H” at 67. On August 12, 2010, Petitioner was resentenced on Count 14 Two, Theft by Control and/or by Controlling Stolen Property, to a presumptive ten (10) 15 year term of imprisonment to be served concurrently with the sentences previously 16 imposed. Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case No. CR20073101, 17 Minute Entry 8/12/2010 (Exh. “I”) (Doc. 11). 18 C. Initial Post-Conviction Relief Proceeding 19 On August 7, 2009, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). 20 Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case No. CR20073101, Pet.’s Not. 21 of PCR 8/7/2009 (Exh. “J”) (Doc. 11). On December 23, 2010, Petitioner filed a second 22 PCR Notice. Id., Ariz. Superior Ct., Pima County, Case No. CR20073101, Pet.’s Not. of 23 PCR 12/23/2010 (Exh. “K”) (Doc. 12). Petitioner explained that he had received “a letter 24 dated November 23, 2010 that [his] Rule 32 proceeding was terminated.” Id., Exh. “K” 25 at 6. Petitioner noted that his Rule 32 had been stayed pending the outcome of his direct 26 appeal. Id., Exh. “K” at 6. On August 29, 2011, Petitioner filed his Petition for Post27 Conviction Relief. Id., Ariz. Superior Ct., Pima County, Case No. CR20073101, Pet.’s 28 Petition for PCR (Exh. “L”) (Doc. 12). 1 1. PCR Petition 2 Petitioner asserted two claims for relief including 1) whether the aggravated 3 sentence imposed on Count One, first degree burglary, of the indictment constituted an 4 illegal sentence, and 2) ineffective assistance of appellate counsel for failing to raise the 5 issue of an illegal sentence on appeal. Answer (Doc. 10), Ariz. Superior Ct., Pima 6 County, Case No. CR20073101, Pet.’s Pet. for PCR (Exh. “L”) (Doc. 12). Petitioner 7 urged that “[n]either the Court nor the jury found that any of the enumerated aggravating 8 factors listed in A.R.S. 13-702(C) were applicable to this case[,] [and] [t]he lack of such 9 findings render[ed] Petitioner’s aggravated sentence illegal and a violation of the 10 Petitioner’s constitutional right to the due process of law[.]” Answer (Doc. 10), Exh. “L” 11 at 13. Petitioner further argued that appellate counsel’s failure to assert a claims 12 regarding the classification of Petitioner’s Count Two conviction and that his aggravated 13 sentence on Count One constituted an illegal sentence was ineffective assistance. Id., 14 Exh. “L” at 15. On October 13, 2011, the State filed its response agreeing that Petitioner 15 was entitled to re-sentencing on Count One. Answer (Doc. 10), Ariz. Superior Ct., Pima 16 County, Case No. CR20073101, State’s Resp. to Rule 32 Pet. for PCR (Exh. “M”) (Doc. 17 12). 18 2. Rule 32 Court Order 19 On February 1, 2012, the Rule 32 court resentenced Petitioner as to Count One, 20 burglary in the first degree. Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case 21 No. CR20073101, Minute Entry Re-Sentencing (Sentence of Imprisonment as to Count 22 One Only) 2/1/2012 (Exh. “N”) (Doc. 12). The court imposed a mitigated term of 23 fourteen (14) years of imprisonment for Petitioner’s burglary in the first degree 24 conviction. Id., Exh. “N” at 22. 25 3. PCR Appeal 26 On February 22, 2012, Petitioner filed a Notice of Appeal from Superior Court. 27 Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case No. CR20073101, Not. of 28 Appeal from Sup. Ct. (Exh. “O”) (Doc. 12). Petitioner sought review by the Arizona 1 Court of Appeals urging that the trial court erred in relying on Petitioner’s past 2 admissions of prior convictions from his original “flawed” sentencing proceedings to 3 enhance the sentence imposed at re-sentencing. See Answer (Doc. 10), Court of Appeals, 4 State of Arizona, Case No. 2 CA-CR2012-0050, Appellant’s Opening Br. (Exh. “P”) 5 (Doc. 12) at 37–43. 6 On October 29, 2012, the Arizona Court of Appeals affirmed Petitioner’s 7 sentence. See Answer (Doc. 10), Court of Appeals, State of Arizona, Case No. 2 CA-CR 8 2012-0050, Mem. Decision 10/29/2012 (Exh. “S”) (Doc. 12). The appellate court noted 9 that Petitioner “acknowledge[d] he did not raise this argument in the trial court and has 10 forfeited relief for all but fundamental, prejudicial error.” Id., Exh. “S” at 75 (citing State 11 v. Henderson, 210 Ariz. 561 , ¶¶ 19–20, 115 P.3d 601, 607 (Ariz. 2005)). The appellate 12 court found that Petitioner had not shown error. Id., Exh. “S” at 76. The court of appeals 13 reiterated Arizona’s rule that “[a] defendant’s admission of the truth of the allegation of 14 prior conviction [is] conclusive in all subsequent proceedings.” Id., Exh. “S” at 76 (citing 15 Wallace v. State ex rel. Eyman, 5 Ariz. App. 377, 379 , 427 P.2d 358, 360 (Ariz. 1967)) 16 (internal quotations omitted) (second alteration in original). The court of appeals found 17 Petitioner’s “sentence was set aside; his admission was not.” Id., Exh. “S” at 77. In 18 making this finding, the appellate court also noted that “Lopez d[id] not suggest his 19 admission was not compliant with Rule 17, [Arizona Rules of Criminal Procedure], or 20 identify any other error[.] Id., Exh. “S” at 77. As such, the appellate court rejected 21 Petitioner’s claim and affirmed the sentence imposed. Id., Exh. “S” at 78. 22 On January 28, 2013, Petitioner filed his Petition for Review to the Arizona 23 Supreme Court. See Answer (Doc. 10), Arizona Supreme Court, Case No. CR-12-048624 PR, Pet.’s Pet. for Review (Exh. “T”) (Doc. 12). On May 14, 2013, the Arizona Supreme 25 Court denied review. See Answer (Doc. 10), Arizona Supreme Court, Case. No. CR-1226 0486-PR, Memorandum 5/14/2013 (Exh. “U”) (Doc. 13). 27 D. Second Post-Conviction Relief Proceeding 28 On July 2, 2013, Petitioner filed another PCR Notice. State of Arizona v. Lopez, 1 Ariz. Superior Ct., Pima County, Case No. CR20073101, Notice in Chambers Re: Not. of 2 PCR 10/22/2013.6 On October 22, 2013, the Rule 32 court appointed counsel and 3 directed counsel to file a PCR petition within sixty (60) days. Id. On October 15, 2014, 4 Petitioner timely filed his PCR Petition. Answer (Doc. 10), Ariz. Superior Ct., Pima 5 County, Case No. CR20073101, Pet.’s Pet. for PCR 1/15/2014 (Exh. “V”) (Doc. 13); see 6 also State of Arizona v. Lopez, Ariz. Superior Ct., Pima County, Case No. CR20073101, 7 Docket (reflecting extensions of time to file PCR). 8 1. PCR Petition 9 Petitioner asserted two claims for relief including 1) ineffective assistance of 10 counsel regarding a plea offer, and 2) ineffective assistance of prior counsel for failing to 11 raise the first issue. Answer (Doc. 10), Exh. “V” at 7. Petitioner urged that “he had been 12 advised by trial counsel of a plea offer with a presumptive sentence of 10.5 years[,] . . . 13 but request to see the plea in written form to ensure that he understood the terms of the 14 plea.” Id., Exh. “V” at 7–8. Petitioner further asserts that he never received a written 15 plea offer, and “[d]ays before the trial . . . was to start[,]” he asked trial counsel’s 16 investigator for a written offer. Id., Exh. “V” at 8. Subsequently, Petitioner met with 17 trial counsel who told him that the plea offer had expired. Id., Exh. “V” at 8. Petitioner 18 asserts that he was unaware of any time limit and asked counsel to ask the prosecutor to 19 resurrect the plea, but counsel advised him that it was too late. Id., Exh. “V” at 8. 20 Petitioner asserts that he would have accepted that plea if he had seen it in writing and 21 been fully advised of its terms. Answer (Doc. 10), Exh. “V” at 8. Petitioner further 22 argued that if the court determined that Petitioner had waived the plea issue or was 23 otherwise precluded from raising the issue, this would have been the result of prior 24 counsel would constitute ineffective assistance. Id., Exh. “V” at 10. [25] 6 “The court may judicially notice a fact that is not subject to reasonable dispute because [26] it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately 27 and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Arizona state court orders and proceedings are proper material for judicial notice. 28 See Dawson v. Mahoney, 451 F.3d 550 , 551 n.1 (taking judicial notice of orders and proceedings before another tribunal). 1 2. Rule 32 Court Order 2 On January 6, 2015, the Rule 32 court issued its order denying and dismissing the 3 Petition for PCR. Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case No. 4 CR20073101, Ruling, In Chambers Re: Petition for Post-Conviction Relief – Rule 32 5 1/6/2015 (Exh. “Z”) (Doc. 13). The Rule 32 court reviewed the Arizona state post6 conviction relief rule regarding the preclusion of remedies and found that “Defendant 7 [was] precluded from raising his claim of ineffective assistance of trial counsel regarding 8 an alleged verbal plea agreement.” Id., Exh. “Z” at 84 (citing Ariz. R. Crim. P. 32.2). 9 The Rule 32 court further held that “[a] claim that post-conviction counsel was 10 ineffective is not a cognizable ground for relief in a subsequent post-conviction 11 proceeding.” Id., Exh. “Z” at 84 (citing State v. Escareno-Meraz, 307 P.3d 1013 , 1014 12 (Ariz. Ct. App. 2013); then citing State v. Krum, 903 P.2d 596, 599 (Ariz. 1995)). In 13 making these findings, the Rule 32 court observed that “Defendant [] had two appeals, 14 and two Rule 32 proceedings each with a different attorney appointed[,] . . . [but] failed 15 to raise the ineffective assistance of counsel claim for the alleged plea agreement[.]” 16 Answer (Doc. 10), Exh. “Z” (Doc. 13) at 84. As such, the Rule 32 court denied and 17 dismissed Petitioner’s petition. Id., Exh. “Z” at 84. 18 3. PCR Appeal 19 On February 5, 2015, Petitioner filed a Petition for Review and an Amended 20 Petition for Review with the Arizona Court of Appeals. Answer (Doc. 10), Court of 21 Appeals, State of Arizona, Case No. 2 CA-CR2015-0045-PR, Pet. for Review (Exh. 22 “AA”) (Doc. 13) & Amended Pet. for Review (Exh. “BB” (Doc. 14). Petitioner sought 23 review asserting that he was denied effective assistance of counsel when trial counsel 24 allegedly “failed to give information necessary to allow the petitioner to make an 25 informed decision whether to accept the plea.” Id., Exh. “BB” at 8–9. Petitioner further 26 asserted that he was entitled to an evidentiary hearing on this issue. Id., Exh. “BB” at 9. 27 Petitioner also argued that State v. Krum7 and State v. Escareno-Meraz,8 relied on by the [7] 183 Ariz. 288 , 903 P.2d 596 (Ariz. 1995). 1 Rule 32 court, were inapplicable to the facts of his case. Id., Exh. “BB” at 10–11. 2 Petitioner asserted that “[t]hese cases present an illogical and unfair state of the law” and 3 are at odds with federal law and the Arizona constitution. Id., Exh. “BB” at 11–12. 4 On April 29, 2015, the Arizona Court of Appeals granted review, but denied relief. 5 See Answer (Doc. 10), Ariz. Ct. App., Case No. 2 CA-CR 2015-0045-PR, Mem. 6 Decision 4/29/2015 (Exh. “DD”) (Doc. 14). The appellate court noted that “[t]he trial 7 court summarily denied [Petitioner’s] claim, concluding that it was precluded based on 8 Lopez’s failure to raise it in a previous Rule 32 proceeding and that Lopez had not been 9 entitled to effective assistance of counsel in his earlier proceedings.” Id., Exh. “DD” at 10 20. The appellate court recognized that “Arizona courts consistently have stated that, for 11 non-pleading defendants like Lopez,[] there is no constitutional right to counsel in post12 conviction proceedings and, thus, despite the existence of state rules providing counsel, a 13 claim that Rule 32 counsel was ineffective is not a cognizable ground for relief in a 14 subsequent Rule 32 proceeding.” Id., Exh. “DD” at 20 (citations omitted). As such, the 15 appellate court confirmed that the trial court was correct and denied relief. Id., Exh. 16 “DD” at 20. 17 On May 27, 2015, Petitioner sought review by the Arizona Supreme Court. 18 Answer (Doc. 10), Ariz. Ct. App., Case No. 2 CA CR 2015-0445-PR, Pet.’s Pet. for 19 Review 5/27/2015 (Exh. “EE”). On October 27, 2015, the Arizona Supreme Court 20 denied review. Answer (Doc. 10), Ariz. Supreme Ct., Case No. CR-15-0183-PR, 21 Memorandum 10/27/2015 (Exh. “FF”). 22 E. The Instant Habeas Proceeding 23 On October 11, 2016, Petitioner filed his Petition Pursuant to 28 U.S.C. § 2254 for 24 a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). 25 Petitioner asserts three (3) grounds for relief. See Petition (Doc. 1). First, Petitioner 26 alleges that the “[t]rial court erred in relying on Mr. Lopez’s past admission of prior 27 convictions from the original flawed sentancing [sic] proceedings to enhance his sentance [8] 232 Ariz. 586 , 307 P.3d 1013 (Ariz. Ct. App. 2013). 1 [sic] upon re-sentancing [sic].” Id. at 6. Petitioner urges that the “State should have been 2 required to re-prove the prior historical felony convictions, if Mr. Lopez chose to admit 3 such felonies proper Rule 17 procedure should have been set[.]” Id. Petitioner further 4 urges that “since this was an entirely new sentance [sic], trial court [sic] was required to 5 make new findings as to the prior conviction either by following the process prescribed in 6 Rule 17.6 or by requiring the State to prove their validity.” Id. Petitioner opines that the 7 court “cannot rely on previous sentancing [sic] process in 2008 that has been proven to be 8 unreliable and significantly flawed.” Id. Second, Petitioner asserts that trial counsel was 9 ineffective regarding a potential plea offer of 10.5 years imprisonment. Petition (Doc. 1) 10 at 7. Petitioner alleges that trial counsel never presented a written plea offer to him, 11 despite Petitioner’s request, and the plea offer was withdrawn before Petitioner could 12 accept it. Id. Petitioner asserts that he was unaware that the offer would expire, and he 13 would have “accepted [the] plea had it been provided to him in writing and explained.” 14 Id. Third, Petitioner claims that counsel was ineffective because “counsel’s conduct 15 undermined the process and proper functioning of the adversarial process[,] . . . was 16 deficient and results [sic] of the proceedings would have been different[,] [and] [the] 17 failure of appellate counsel to raise an issue of fundamental error is deficient conduct 18 which prejudiced the defendant.” Id. at 8. 19 On December 14, 2016, Respondents filed their Limited Answer (Doc. 10), and on 20 December 27, 2016, Petitioner replied (Doc. 15). [21] 22 II. STANDARD OF REVIEW 23 A. In General 24 The federal courts shall “entertain an application for a writ of habeas corpus in 25 behalf of a person in custody pursuant to the judgment of a State court only on the ground 26 that he is in custody in violation of the Constitution or laws of treaties of the United 27 States.” 28 U.S.C. § 2254 (a) (emphasis added). Moreover, a petition for habeas corpus 28 by a person in state custody: 1 shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – (1) [2] resulted in a decision that was contrary to, or involved an unreasonable 3 application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was [4] based on an unreasonable determination of the facts in light of the evidence 5 presented in the State court proceeding. [6] 28 U.S.C. § 2254 (d); see also Cullen v. Pinholster, 563 U.S. 170, 181 , 131 S. Ct. 1388 , 7 1398, 179 L. Ed. 2d 557 (2011). Correcting errors of state law is not the province of 8 federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67 , 112 S. Ct. 475, 480 , [9] 116 L. Ed. 2d 385 (1991). Ultimately, “[t]he statute’s design is to ‘further the principles 10 of comity, finality, and federalism.’” Panetti v. Quarterman, 551 U.S. 930, 945 , 127 S. 11 Ct. 2842, 2854, 168 L. Ed. 2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322 , 12 337, 123 S. Ct. 1029 , 154 L. Ed. 2d 931 (2003)). Furthermore, this standard is difficult to 13 meet and highly deferential “for evaluating state-court rulings, [and] which demands that 14 state-court decisions be given the benefit of the doubt.” Pinholster, 563 U.S. at 181 , 131 15 S. Ct. at 1398 (citations and internal quotation marks omitted). 16 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 17 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254 . The 18 “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims 19 have been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19 , 134 S. Ct. 10, 16 , [20] 187 L. Ed. 2d 348 (2013). Federal courts reviewing a petition for habeas corpus must 21 “presume the correctness of state courts’ factual findings unless applicants rebut this 22 presumption with ‘clear and convincing evidence.’” Schriro v. Landrigan, 550 U.S. 465 , 23 473–74, 127 S. Ct. 1933, 1940 , 167 L. Ed. 2d 836 (2007) (citing 28 U.S.C. § 2254 (e)(1)). 24 Moreover, on habeas review, the federal courts must consider whether the state court’s 25 determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473 , 127 S. Ct. at 26 1939; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is 27 unreasonable where a state court properly identifies the governing legal principles 28 delineated by the Supreme Court, but when the court applies the principles to the facts 1 before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86 , 131 S. Ct. 2 770, 178 L. Ed. 2d 624 (2011); Williams v. Taylor, 529 U.S. 362 , 120 S. Ct. 1495 , 146 L. 3 Ed. 2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004). 4 “AEDPA requires ‘a state prisoner [to] show that the state court’s ruling on the claim 5 being presented in federal court was so lacking in justification that there was an error . . . 6 beyond any possibility for fairminded disagreement.’” Burt, 134 S. Ct. at 10 (quoting 7 Harrington, 562 U.S. at 103, 131 S. Ct. at 786–87) (alterations in original). 8 B. Exhaustion of State Remedies 9 Prior to application for a writ of habeas corpus, a person in state custody must 10 exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254 (b)(1)(A). This 11 “provides a simple and clear instruction to potential litigants: before you bring any claims 12 to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy, [13] 455 U.S. 509, 520 , 102 S. Ct. 1198, 1204 , 71 L. Ed. 2d 379 (1982). As such, the 14 exhaustion doctrine gives the State “the opportunity to pass upon and correct alleged 15 violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 , 124 S. Ct. 16 1347, 1349, 158 L. Ed. 2d 64 (2004) (internal quotations omitted). Moreover, “[t]he 17 exhaustion doctrine is principally designed to protect the state courts’ role in the 18 enforcement of federal law and prevent disruption of state judicial proceedings.” Rose, [19] 455 U.S. at 518 , 102 S. Ct. at 1203 (internal citations omitted). This upholds the doctrine 20 of comity which “teaches that one court should defer action on causes properly within its 21 jurisdiction until the courts of another sovereignty with concurrent powers, and already 22 cognizant of the litigation, have had an opportunity to pass upon the matter.” Id. (quoting 23 Darr v. Burford, 339 U.S. 200, 204 , 70 S. Ct. 587, 590 , 94 L. Ed. 761 (1950)). 24 Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long 25 as the applicant “has the right under the law of the State to raise, by any available 26 procedure the question presented.” 28 U.S.C. § 2254 (c). “[O]nce the federal claim has 27 been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard 28 v. Connor, 404 U.S. 270, 275 , 92 S. Ct. 509, 512 , 30 L. Ed. 2d 438 (1971). The fair 1 presentation requirement mandates that a state prisoner must alert the state court “to the 2 presence of a federal claim” in his petition, simply labeling a claim “federal” or expecting 3 the state court to read beyond the four corners of the petition is insufficient. Baldwin v. 4 Reese, 541 U.S. 27, 33 , 124 S. Ct. 1347, 1351 , 158 L. Ed. 2d 64 (2004) (rejecting 5 petitioner’s assertion that his claim had been “fairly presented” because his brief in the 6 state appeals court did not indicate that “he was complaining about a violation of federal 7 law” and the justices having the opportunity to read a lower court decision addressing the 8 federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) 9 (holding that petitioner failed to exhaust federal due process issue in state court because 10 petitioner presented claim in state court only on state grounds). Furthermore, in order to 11 “fairly present” one’s claims, the prisoner must do so “in each appropriate state court.” 12 Baldwin, 541 U.S. at 29 , 124 S. Ct. at 1349 . “Generally, a petitioner satisfies the 13 exhaustion requirement if he properly pursues a claim (1) throughout the entire direct 14 appellate process of the state, or (2) throughout one entire judicial postconviction process 15 available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting 16 Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 17 1998)). 18 In Arizona, however, for non-capital cases “review need not be sought before the 19 Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d 20 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 21 2007); Moreno v. Gonzalez, 192 Ariz. 131 , 962 P.2d 205 (1998). Additionally, the 22 Supreme Court has further interpreted § 2254(c) to recognize that once the state courts 23 have ruled upon a claim, it is not necessary for an applicant to seek collateral relief for 24 the same issues already decided upon direct review. Castille v. Peoples, 489 U.S. 346 , 25 350, 109 S. Ct. 1056, 1060 , 103 L. Ed. 2d 380 (1989). 26 C. Procedural Default 27 “A habeas petitioner who has defaulted his federal claims in state court meets the 28 technical requirements for exhaustion; there are no state remedies any longer ‘available’ 1 to him.” Coleman v. Thompson, 501 U.S. 722, 732 , 111 S. Ct. 2546, 2555 , 115 L. Ed. 2d 2 650 (1991). Moreover, federal courts “will not review a question of federal law decided 3 by a state court if the decision of that court rests on a state law ground that is independent 4 of the federal question and adequate to support the judgment.” Id., 501 U.S. at 728 , 111 5 S. Ct. at 2254. This is true whether the state law basis is substantive or procedural. Id. 6 (citations omitted). Such claims are considered procedurally barred from review. See 7 Wainwright v. Sykes, 433 U.S. 72 , 97 S. Ct. 2497 , 53 L. Ed. 2d 594 (1977). 8 The Ninth Circuit Court of Appeals explained the difference between exhaustion 9 and procedural default as follows: [10] The exhaustion doctrine applies when the state court has never been 11 presented with an opportunity to consider a petitioner’s claims and that opportunity may still be available to the petitioner under state law. In 12 contrast, the procedural default rule barring consideration of a federal claim 13 applies only when a state court has been presented with the federal claim, but declined to reach the issue for procedural reasons, or if it is clear that 14 the state court would hold the claim procedurally barred. Franklin v. 15 Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and citations omitted). Thus, in some circumstances, a petitioner’s failure to 16 exhaust a federal claim in state court may cause a procedural default. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002); Beaty v. Stewart, [17] 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if 18 the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the [19] exhaustion requirement would now find the claims procedurally barred.’”) 20 (quoting Coleman v. Thompson, 501 U.S. 722 , 735 n.1, 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991)). [21] 22 Cassett v. Stewart, 406 F.3d 614 , 621 n.5 (9th Cir. 2005). Thus, a prisoner’s habeas 23 petition may be precluded from federal review due to procedural default in two ways. 24 First, where the petitioner presented his claims to the state court, which denied relief 25 based on independent and adequate state grounds. Coleman, 501 U.S. at 728 , 111 S. Ct. 26 at 2254. Federal courts are prohibited from review in such cases because they have “no 27 power to review a state law determination that is sufficient to support the judgment, 28 resolution of any independent federal ground for the decision could not affect the 1 judgment and would therefore be advisory.” Id. Second, where a “petitioner failed to 2 exhaust state remedies and the court to which the petitioner would be required to present 3 his claims in order to meet the exhaustion requirement would now find the claims 4 procedurally barred.” Id. at 735 n.1, 111 S. Ct. at 2557 n.1 (citations omitted). Thus, the 5 federal court “must consider whether the claim could be pursued by any presently 6 available state remedy.” Cassett, 406 F.3d at 621 n.6 (quotations and citations omitted) 7 (emphasis in original). 8 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 9 courts are prohibited from subsequent review unless the petitioner can show cause and 10 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 , 109 S. Ct. 1060, 1068 , [11] 103 L. Ed. 2d 334 (1989) (holding that failure to raise claims in state appellate 12 proceeding barred federal habeas review unless petitioner demonstrated cause and 13 prejudice); see also Smith v. Murray, 477 U.S. 527, 534 , 106 S. Ct. 2661, 2666 , 91 L. Ed. 14 2d 434 (1986) (recognizing “that a federal habeas court must evaluate appellate defaults 15 under the same standards that apply when a defendant fails to preserve a claim at trial.”). 16 “[T]he existence of cause for a procedural default must ordinarily turn on whether the 17 prisoner can show that some objective factor external to the defense impeded counsel’s 18 efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478 , 19 488, 106 S. Ct. 2639, 2645 , 91 L. Ed. 2d 397 (1986); see also Martinez-Villareal v. 20 Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for 21 procedurally defaulting his claims of ineffective assistance of counsel, [as such] there is 22 no basis on which to address the merits of his claims.”). In addition to cause, a habeas 23 petitioner must show actual prejudice, meaning that he “must show not merely that the 24 errors . . . created a possibility of prejudice, but that they worked to his actual and 25 substantial disadvantage, infecting his entire trial with error of constitutional 26 dimensions.” Murray, 477 U.S. at 494, 106 S. Ct. at 2648 (emphasis in original) (internal 27 quotations omitted). Without a showing of both cause and prejudice, a habeas petitioner [28] 1 cannot overcome the procedural default and gain review by the federal courts. Id., 106 2 S.Ct. at 2649. 3 The Supreme Court has recognized, however, that “the cause and prejudice 4 standard will be met in those cases where review of a state prisoner’s claim is necessary 5 to correct ‘a fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722 , [6] 111 S. Ct. 2546 , 115 L. Ed. 2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135 , [7] 102 S. Ct. 1558 , 1572–73, 71 L. Ed. 2d 783 (1982)). “The fundamental miscarriage of 8 justice exception is available ‘only where the prisoner supplements his constitutional 9 claim with a colorable showing of factual innocence.’” Herrara v. Collins, 506 U.S. 390 , 10 404, 113 S. Ct. 853, 862 , 122 L. Ed. 2d 203 (1993) (emphasis in original) (quoting 11 Kuhlmann v. Wilson, 477 U.S. 436, 454 , 106 S. Ct. 2616, 2627 , 91 L. Ed. 2d 364 (1986)). 12 Thus, “‘actual innocence’ is not itself a constitutional claim, but instead a gateway 13 through which a habeas petitioner must pass to have his otherwise barred constitutional 14 claim considered on the merits.” Herrara, 506 U.S. at 404 , 113 S.Ct. at 862 . Further, in 15 order to demonstrate a fundamental miscarriage of justice, a habeas petitioner must 16 “establish by clear and convincing evidence that but for the constitutional error, no 17 reasonable factfinder would have found [him] guilty of the underlying offense.” 28 18 U.S.C. § 2254 (e)(2)(B). 19 In Arizona, a petitioner’s claim may be procedurally defaulted where he has 20 waived his right to present his claim to the state court “at trial, on appeal or in any 21 previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3). “If an asserted claim is of 22 sufficient constitutional magnitude, the state must show that the defendant ‘knowingly, 23 voluntarily and intelligently’ waived the claim.” Id., 2002 cmt. Neither Rule 32.2. nor 24 the Arizona Supreme Court has defined claims of “sufficient constitutional magnitude” 25 requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, 202 Ariz. 26 446 , 46 P.3d 1067 (2002). The Ninth Circuit Court of Appeals recognized that this 27 assessment “often involves a fact-intensive inquiry” and the “Arizona state courts are 28 better suited to make these determinations.” Cassett, 406 F.3d at 622 . 1 III. STATUTE OF LIMITATIONS 2 A. Timeliness 3 As a threshold matter, the Court must consider whether Petitioner’s petition is 4 barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920 , 921–22 (9th Cir. 5 2002). The AEDPA mandates that a one-year statute of limitations applies to 6 applications for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 7 2244(d)(1). Section 2244(d)(1) provides that the limitations period shall run from the 8 latest of: 9 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; [10] (B) the date on which the impediment to filing an application created by [11] the State action in violation of the Constitution or laws of the United States 12 is removed, if the applicant was prevented from filing by such State action; 13 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized [14] by the Supreme Court and made retroactively applicable to cases on 15 collateral review; or 16 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. [17] 28 U.S.C. § 2244 (d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time [18] during which a properly filed application for State post-conviction or other collateral [19] review with respect to the pertinent judgment or claim is pending shall not be counted [20] toward any period of limitation under this subsection.” 28 U.S.C. § 2244 (d)(2). [21] Respondents assert that, pursuant to the AEDPA, Petitioner’s one-year limitation [22] period expired, absent tolling, on August 12, 2014. Answer (Doc. 10) at 5. Respondents [23] further assert that Petitioner’s second petition for post-conviction relief did not toll the [24] limitations period, because it was filed after the one-year AEDPA time limit had expired. [25] Id. The limitations period is tolled during the time in “which a properly filed application [26] for State post-conviction or other collateral review with respect to the pertinent judgment [27] or claim is pending[.]” 28 U.S.C. § 2244 (d)(2); Allen v. Siebert, 552 U.S. 3, 4 , 128 S. Ct. 28 1 2, 3, 169 L. Ed. 2d 329 (2007). An application for State post-conviction relief is 2 “‘properly filed’ when its deliver and acceptance are in compliance with the applicable 3 laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 , 121 S. Ct. 361, 364 , [4] 148 L. Ed. 2d 213 (2000). Statutory tolling of the limitations period ends “[a]fter the 5 State’s highest court has issued its mandate or denied review, [because] no other state 6 avenues for relief remain open.” Lawrence v. Florida, 549 U.S. 327, 332 , 127 S. Ct. 7 1079, 1083 , 166 L. Ed. 2d 924 (2007); see also Hemmerle v. Schriro, 495 F.3d 1069 , 8 1077 (9th Cir. 2007) (collateral proceeding “determined” when the Arizona Supreme 9 Court denied petition for review). 10 “[I]n Arizona, post-conviction ‘proceedings begin with the filing of the Notice.’” 11 Hemmerle, 495 F.3d at 1074 (quoting Isley v. Arizona Dept. of Corrections, 383 F.3d 12 1054 (9th Cir. 2004)). Petitioner filed his second-round Notice of Post-Conviction Relief 13 on July 2, 2013. State of Arizona v. Lopez, Ariz. Superior Ct., Pima County, Case No. 14 CR20073101, Notice in Chambers Re: Not. of PCR 10/22/2013. This PCR notice was 15 “properly filed,” and therefore tolled AEDPA’s one-year statute of limitations. This was 16 prior to the ninety (90) day expiration of Petitioner’s time for seeking a writ of certiorari 17 by the Supreme Court of the United States. As such, Petitioner’s Petition (Doc. 1) is 18 timely pursuant to 28 U.S.C. § 2244 (d)(1)(A). [19] 20 IV. ANALYSIS 21 A. Ground One: Prior Convictions 22 Petitioner alleges that the “[t]rial court erred in relying on Mr. Lopez’s past 23 admission of prior convictions from the original flawed sentancing [sic] proceedings to 24 enhance his sentance [sic] upon re-sentancing [sic].” Petition (Doc. 1) at 6. Petitioner 25 urges that the “State should have been required to re-prove the prior historical felony 26 convictions, if Mr. Lopez chose to admit such felonies proper Rule 17 procedure should 27 have been set[.]” Id. Petitioner further urges that “since this was an entirely new 28 sentance [sic], trial court was required to make new findings as to the prior conviction 1 either by following the process prescribed in Rule 17.6 or by requiring the State to prove 2 their validity.” Id. Petitioner opines that the court “cannot rely on previous sentancing 3 [sic] process in 2008 that has been proven to be unreliable and significantly flawed.” Id. 4 As discussed in Section II.A., supra, this Court shall “entertain an application for a 5 writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State 6 court only on the ground that he is in custody in violation of the Constitution or laws of 7 treaties of the United States.” 28 U.S.C. § 2254 (a) (emphasis added). Federal habeas 8 corpus relief is not for the purpose of correcting errors of state law. Estelle v. McGuire, [9] 502 U.S. 62, 67 , 112 S. Ct. 475, 480 , 116 L. Ed. 2d 385 (1991). Petitioner’s claim seeks 10 relief for an alleged misapplication of state law, and as such, it is not cognizable in 11 federal habeas corpus. 12 B. Ground Two: Ineffective Assistance of Trial Counsel 13 Petitioner asserts that trial counsel was ineffective regarding a potential plea offer 14 of 10.5 years imprisonment. Petition (Doc. 1) at 7. Petitioner alleges that trial counsel 15 never presented a written plea offer to him, despite Petitioner’s request, and the plea offer 16 was withdrawn before Petitioner could accept it. Id. Petitioner asserts that he was 17 unaware that the offer would expire, and he would have “accepted [the] plea had it been 18 provided to him in writing and explained.” Id. Petitioner raised this issue to both the 19 trial and appellate courts in his second post-conviction relief proceeding. 20 As discussed in Section II.C., supra, federal courts “will not review a question of 21 federal law decided by a state court if the decision of that court rests on a state law 22 ground that is independent of the federal question and adequate to support the judgment.” 23 Coleman v. Thompson, 501 U.S. 722, 728 , 111 S. Ct. 2546, 2254 , 115 L. Ed. 2d 650 24 (1991). This is true whether the state law basis is substantive or procedural. Id. (citations 25 omitted). Here, the appellate court recognized that “Arizona courts consistently have 26 stated that, for non-pleading defendants like Lopez,[] there is no constitutional right to 27 counsel in post-conviction proceedings and, thus, despite the existence of state rules 28 providing counsel, a claim that Rule 32 counsel was ineffective is not a cognizable 1 ground for relief in a subsequent Rule 32 proceeding.” Answer (Doc. 10), Ariz. Ct. App., 2 Case No. 2 CA-CR 2015-0045-PR, Mem. Decision 4/29/2015 (Exh. “DD”) (Doc. 14) at 3 20 (citations omitted). As such, the appellate court confirmed that the trial court was 4 correct and denied relief. Id., Exh. “DD” at 20. Therefore, Petitioner’s claims are 5 considered procedurally barred from review. See Wainwright v. Sykes, 433 U.S. 72 , 97 S. 6 Ct. 2497, 53 L. Ed. 2d 594 (1977). 7 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 8 courts are prohibited from subsequent review unless the petitioner can show cause and 9 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 , 109 S. Ct. 1060, 1068 , [10] 103 L. Ed. 2d 334 (1989) (holding that failure to raise claims in state appellate 11 proceeding barred federal habeas review unless petitioner demonstrated cause and 12 prejudice). Petitioner has not met his burden to show either cause or actual prejudice. 13 Murray v. Carrier, 477 U.S. 478, 494 , 106 S. Ct. 2639, 2648 , 91 L. Ed. 2d 397 (1986) 14 (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, 15 but that they worked to his actual and substantial disadvantage, infecting his entire trial 16 with error of constitutional dimensions”) (emphasis in original) (internal quotations 17 omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) 18 (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as 19 such,] there is no basis on which to address the merits of his claims.”). Neither has 20 Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional 21 error, no reasonable factfinder would have found [him] guilty of the underlying offense.” [22] 28 U.S.C. § 2254 (e)(2)(B). As such, Petitioner has failed to meet the cause and prejudice 23 standard or demonstrate a fundamental miscarriage of justice. See Coleman, 501 U.S. at 24 748, 111 S. Ct. at 2564 (citations and quotations omitted). Therefore, Petitioner’s claim 25 is denied. 26 C. Ground Three: Ineffective Assistance of Counsel 27 Petitioner claims that counsel was ineffective because “counsel’s conduct 28 undermined the process and proper functioning of the adversarial process[,] . . . was 1 deficient and results [sic] of the proceedings would have been different[,] [and] [the] 2 failure of appellate counsel to raise an issue of fundamental error is deficient conduct 3 which prejudiced the defendant.” Petition (Doc. 1) at 8. 4 “As a general matter, each ‘unrelated alleged instance [ ] of counsel’s 5 ineffectiveness’ is a separate claim for purposes of exhaustion.” Gulbrandson v. Ryan, [6] 738 F.3d 976, 992 (9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d 1044 , 1056 7 (9th Cir. 2005)) (alterations in original). This means “all operative facts to an ineffective 8 assistance claim must be presented to the state courts in order for a petitioner to exhaust 9 his remedies.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). This is 10 “[b]ecause ineffective assistance claims are not fungible, but are instead highly fact11 dependent, [requiring] some baseline explication of the facts relating to it[.]” Id. As such, 12 “a petitioner who presented any ineffective assistance of counsel claim below can[not] 13 later add unrelated instances of counsel’s ineffectiveness to that claim.” Id. (citations and 14 internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 15 2008) (“Petitioner’s assertion of a claim of ineffective assistance of counsel based on one 16 set of facts, does not exhaust other claims of ineffective assistance based on different 17 facts”). 18 Petitioner’s claim is devoid of facts sufficient to determine which counsel he 19 alleges was ineffective. As the Rule 32 court recognized, “Defendant [] had two appeals, 20 and two Rule 32 proceedings each with a different attorney appointed[.]” Answer (Doc. 21 10), Ariz. Superior Ct., Pima County, Case No. CR20073101, Ruling, In Chambers Re: 22 Petition for Post-Conviction Relief – Rule 32 1/16/2015 (Exh. “Z”) (Doc. 13). The Court 23 finds Petitioner failed to present this federal claim to the state courts, and it is now 24 procedurally defaulted. Where a habeas petitioner’s claims have been procedurally 25 defaulted, the federal courts are prohibited from subsequent review unless the petitioner 26 can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 , 109 27 S. Ct. 1060 , 1068, 103 L. Ed. 2d 334 (1989) (holding that failure to raise claims in state 28 appellate proceeding barred federal habeas review unless petitioner demonstrated cause 1 and prejudice). Petitioner has not met his burden to show either cause or actual 2 prejudice. Murray v. Carrier, 477 U.S. 478, 494 , 106 S. Ct. 2639, 2648 , 91 L. Ed. 2d 3 397 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of 4 prejudice, but that they worked to his actual and substantial disadvantage, infecting his 5 entire trial with error of constitutional dimensions”) (emphasis in original) (internal 6 quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 7 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . 8 [and as such,] there is no basis on which to address the merits of his claims.”). Neither 9 has Petitioner “establish[ed] by clear and convincing evidence that but for the 10 constitutional error, no reasonable factfinder would have found [him] guilty of the 11 underlying offense.” 28 U.S.C. § 2254 (e)(2)(B). As such, Petitioner has failed to meet 12 the cause and prejudice standard or demonstrate a fundamental miscarriage of justice. 13 See Coleman, 501 U.S. at 748 , 111 S. Ct. at 2564 (citations and quotations omitted). 14 Therefore, Petitioner’s claim is denied. 15 . . . 16 . . . 17 . . . 18 . . . 19 . . . 20 . . . 21 . . . 22 . . . 23 . . . 24 . . . 25 . . . 26 . . . 27 . . . 28 . . . 1|| VI. CONCLUSION 2 Based upon the foregoing, the Court finds that Petitioner Joseph Gabriel Lopez’s □□ Petition (Doc. 1) is without merit and shall be denied. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1) Petitioner Joseph Gabriel Lopez’s Petition Pursuant to 28 U.S.C. § 2254 for 6|| a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) □□□□□□□□□□□□ 7\| (Doc. 1) is DENIED; 8 2) A certificate of appealability is DENIED, because reasonable jurists would 9|| not find the Court’s ruling debatable. See 28 U.S.C. § 2253 ; 10 3) This matter is DISMISSED with prejudice; 11 4) The Clerk of Court shall enter judgment and close its file in this matter. [12] 13 Dated this 19th day of March, 2020. 14 ( Y Pe | Od 15 Honorable Bruce G. Macdonald United States Magistrate Judge [28] -23-