Bernal v. Jensen

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Steven Thomas Bernal, No. CV-20-00717-PHX-MTL 10 Petitioner, ORDER 11 v. 12 Edwin Jensen, et al., 13 Respondents. [14] 15 Pending before the Court is Magistrate Judge Camille D. Bibles’ Report and 16 Recommendation (“R & R”) (Doc. 9) recommending that Steven Thomas Bernal’s Petition 17 for Writ of Habeas Corpus (the “Petition”) (Doc. 1) be denied and dismissed with 18 prejudice. The Court has reviewed the record, including the Petition (Doc. 1), 19 Respondent’s Answer (Doc. 7) to the Petition, and Petitioner’s Reply (Doc. 8), the R & R 20 (Doc. 9), and Petitioner’s Objection (Doc. 10). Respondents have not filed a response to 21 Petitioner’s Objection. For reasons set forth below, the Court overrules Petitioner’s 22 objections and adopts the R & R in its entirety. 23 I. LEGAL STANDARD 24 This Court “may accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). In so doing, 26 district courts are not required to conduct “any review at all . . . of any issue that is not the 27 subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United States 28 v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he district judge must 1 review the magistrate judge’s findings and recommendations de novo if objection is made, 2 but not otherwise.”). Objections to the magistrate judge’s findings and recommendations 3 must be “specific.” Fed. R. Civ. P. 72(b)(2). If the petitioner raises a general objection, 4 “the Court is relieved of any obligation to review it.” Martin v. Ryan, No. 13-cv-00381, [5] 2014 WL 5432133 , at *2 (D. Ariz. Oct. 24, 2014). 6 The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner Bernal 7 is incarcerated based on a state conviction. This Court must deny the Petition as to any 8 claims that state courts have adjudicated on the merits unless “a state court decision is 9 contrary to, or involved an unreasonable application of, clearly established Federal law,” 10 or was “based on an unreasonable determination of the facts.” 28 U.S.C. § 2254 (d)(1)–(2). 11 An unreasonable application of law must be “objectively unreasonable, not merely wrong; 12 even clear error will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) (internal 13 quotation marks and citation omitted). Thus, a petitioner must show that the state court’s 14 ruling was “so lacking in justification that there was an error well understood and 15 comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 16 419–20 (citation omitted). “When applying these standards, the federal court should 17 review the ‘last reasoned decision’ by a state court . . . .” Robinson v. Ignacio, 360 F.3d 18 1044, 1055 (9th Cir. 2004). Additionally, “[a]n application for a writ of habeas corpus may 19 be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies 20 available in the courts of the State.” 28 U.S.C. § 2254 (b)(2). 21 II. BACKGROUND 22 Because the R & R recounts the factual and procedural history of this case in detail 23 (Doc. 9 at 1–5), only a brief factual recitation is necessary. In October 2017, Bernal and 24 Patrick Johnson sold 3.45 grams of methamphetamine to an undercover police officer. 25 Bernal was indicted by a Maricopa County grand jury for the sale or transportation of 26 dangerous drugs. (Doc. 7-1 at 4–5.) After a three-day trial, a jury returned a guilty verdict. 27 (Doc. 7-1 at 18.) Bernal was sentenced to 14 years in prison with 60 days’ presentence 28 incarceration credit. (Doc. 7-1 at 95–96.) 1 Bernal’s appointed appellate counsel filed a brief in accordance with Anders, 2 asserting that she had not identified any colorable claims that could be raised on his behalf 3 under Arizona Rule of Criminal Procedure 32. (Doc. 7-1 at 104–13.) On December 3, 4 2018, Petitioner filed a pro per brief, alleging three claims of error. (Doc. 7-1 at 119–30.) 5 The State did not file an answering brief. (Doc. 7-1 at 132.) The Arizona Court of Appeals 6 affirmed. (Doc. 7-1 at 138–40.) Thereafter, Petitioner sought review in the Supreme Court 7 of Arizona (Doc. 7-1 at 142–47), which denied review on July 22, 2019. (Id. at 149.) 8 Next, Petitioner filed a timely notice of post-conviction relief (“PCR”). (Doc. 7-1 9 at 151.) The Superior Court denied the PCR petition on its merits. (Doc. 7-1 at 207.) 10 Petitioner did not seek further review. 11 Petitioner filed a habeas petition in this Court on April 13, 2020. (Doc. 1.) The 12 Petition raises four grounds for relief: (1) the trial court lacked jurisdiction to render a 13 judgment or impose a sentence because Petitioner’s trial and sentencing was conducted by 14 a Commissioner; (2) Petitioner’s judgment and sentence violated the Arizona and United 15 States Constitutions; (3) the State failed to demonstrate sufficient evidence; and (4) 16 constitutional violations precluded relief on his direct appeal and post-conviction review. 17 (Doc. 1 at 8.) Respondents filed a response to the Petition on May 28, 2020 (Doc. 7), and 18 Petitioner filed his Reply on June 12, 2020 (Doc. 8). The Magistrate Judge subsequently 19 issued the instant R & R. (Doc. 9.) 20 III. DISCUSSION 21 A. Exhaustion and Procedural Default 22 Petitioner’s pro per direct appeal was denied on its merits by the Arizona Court of 23 Appeals (Doc. 7-1 at 138), and Petitioner’s PCR was likewise denied on its merits by the 24 Superior Court (Id. at 207.) The R & R found that Petitioner had exhausted, but 25 procedurally defaulted, any claim for relief not previously properly presented to the 26 Arizona Court of Appeals. (Doc. 9 at 7.) Nonetheless, because Petitioner exhausted some 27 of his claims for relief (trial court lacked jurisdiction, constitutional violations, and 28 insufficiency of evidence), the R & R considered those grounds for relief. (Doc. 9 at 10– 1 12.) Petitioner objects both to the R & R’s retelling of the procedural history in this case 2 relating to the Superior Court’s treatment of his Motion to Strike Untimely Answer. (Doc. 3 9 at 1–2.) Petitioner filed his PCR petition on August 22, 2019. (Doc. 7-1 at 151.) 4 Subsequently, the Superior Court entered an order, with “[g]ood cause appearing,” 5 directing the State to respond no later than October 14, 2019. (Doc. 7-1 at 166.) The State 6 responded on October 14, 2019. (Doc. 7-1 at 168.) Petitioner did not reply, but instead 7 filed a Motion to Strike Untimely Answer. (Doc. 7-1 at 182.) 8 Arizona Rule of Criminal Procedure 32.9 provides that “[t]he State must file its 9 response no later than 45 days after the defendant files the petition.” Ariz. R. Crim. P. 10 32.9(a). But “[t]he court for good cause may grant the State a 30-day extension to file its 11 response.” Id. 12 Petitioner argues that the State’s 45-day window to file an answer expired October 13 7, 2019, and the Superior Court improperly granted the State an additional week to file an 14 answer. (Doc. 10 at 2.) Here, the Superior Court made a finding of good cause to extend 15 the State’s answer deadline. (Doc. 7-1 at 166.) Moreover, it is “the trial court’s prerogative 16 to control its own docket.” State v. Lamar, 205 Ariz. 431, 436, ¶ 27 (2003). Therefore, no 17 error resulted in the extra week allowed to the State to file its answer to Petitioner’s PCR 18 petition. The State’s answer was timely. Moreover, federal habeas relief is not available 19 for errors of state law. Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Accordingly, any 20 objection to the Superior Court’s treatment of the State’s answer is overruled, and the 21 R & R’s conclusion as to exhaustion and procedural default is affirmed in all respects. 22 B. Trial Court Jurisdiction 23 Petitioner next objects to the authority of the Commissioner who presided over his 24 criminal trial and sentenced him. (Doc. 10 at 3–4.) He first asserts that the State filed an 25 untimely response to his PCR petition, thereby waiving further participation in the action, 26 which “precludes any sua sponte input by the court, leaving the disposition to be made 27 upon the presentation of the petitioner alone.” (Doc. 10 at 3.) Petitioner cites to State v. 28 Brita, 158 Ariz. 121, 124 (1988) to support his assertion. But Brita held that “[i]t is 1 inappropriate to consider an issue for the first time on appeal where the issue is a fact2 intensive one.” Id. (finding the state waived its opportunity to argue the applicability of a 3 statute on appeal because it never argued the applicability of the statute to the trial court). 4 Brita does not apply to the Petitioners’ case. As set forth above, the State filed a timely 5 response. Also, the Superior Court and the R & R addressed only the jurisdictional issues 6 that Petitioner himself raised in his petition. 7 Petitioner also reasserts the merits of his argument regarding the authority of the 8 Commissioner who presided over his trial and sentencing. He argues that because the 9 Commissioner was a Judge Pro Tempore, the trial court was “completely absent of 10 jurisdiction to hear, convict, or sentence anyone.” (Doc. 10 at 3.) Petitioner relies on 11 evaluation questionnaires and the court reporter’s certification as proof. (Id.) As explained 12 by both the Arizona Court of Appeals and the R & R, a Commissioner who presided over 13 Petitioner’s trial and sentencing was appointed as a superior court judge pro tempore 14 pursuant to A.R.S. §§ 25-121 and 12-222. (See Docs. 7-1 at 213–14, Doc. 9 at 11.) 15 Therefore, the Commissioner’s authority was valid. 16 Petitioner does not make any specific objections to the R & R, nor does he provide 17 any new assertions or arguments regarding the Commissioner’s jurisdiction. Instead, 18 Petitioner reasserts the same arguments he has made to the Arizona Court of Appeals, the 19 Superior Court, and to the Magistrate Judge. Under Rule 72, objections must be specific 20 . . . to the proposed findings and recommendations” of the magistrate judge. Fed. R. Civ. 21 P. 72 (b)(2). “An obvious purpose for this requirement is judicial economy – to permit 22 magistrate judges to hear and resolve matters not objectionable to the parties. Because de 23 novo review of the entire R & R would defeat the efficiencies intended by Congress, a 24 general objection ‘has the same effect as would a failure to object.’” Quinn v. Hacker25 Agnew, No. CV-19-08152-PCT-DGC (CDB), 2020 WL 6680401 , at *2 (D. Ariz. Nov. 9, 26 2020) (citations omitted). Petitioner’s objections are overruled. 27 C. State and Federal Constitutional Violations 28 Petitioner objects to the jury instructions presented at trial. (Doc. 10 at 4.) He 1 argues that the trial court’s instruction to the jury that methamphetamine is a dangerous 2 drug is a “direct violation of the prohibition on burden shifting” and also violates “due 3 process and fair trial.” (Id.) 4 Petitioner was charged with violating A.R.S. § 13-3407, which prohibits the sale or 5 transportation of dangerous drugs. It provides: “A person shall not knowingly . . .transport 6 for sale, important into this state or offer to transport for sale or import into this state, sell 7 or transfer or offer to sell or transfer a dangerous drug.” A.R.S. § 13-3407(7). Section 138 3401 defines “dangerous drug” to include methamphetamine. A.R.S. § 139 3401(6)(c)(xxxviii). Petitioner objects that the court’s instruction (“methamphetamine is 10 a dangerous drug”) provided an element of the charged offense and impermissibly 11 lightened the State’s burden. (Id.) 12 The trial court is allowed to provide the jury with definitions. State v. Hausner, 230 13 Ariz. 60, 83 , ¶¶ 105–108 (2012) (finding the trial court reasonably defined terms in jury 14 instructions). Here especially, where the term is defined by the legislature, there is no 15 question that methamphetamine is a dangerous drug. Therefore, the State did not have to 16 prove that methamphetamine was a dangerous drug, and no impermissible burden shifting 17 occurred. State v. Light, 175 Ariz. 62 , 63–64 (App. 1993) (holding the State does not need 18 to prove that methamphetamine is a dangerous drug because the legislature has already 19 declared that methamphetamine is a dangerous drug). 20 Petitioner next objects to the R & R’s footnote 3, which he claims “misperceives the 21 objection, taking out of context that ‘methamphetamine is a dangerous drug’ without 22 placing it in the follow-on explanatory role in support of the assertive nature of defining 23 the subject substance as a dangerous drug.” (Doc. 10 at 4.) The R & R footnote quoted the 24 entire Court of Appeals paragraph that concluded the trial court did not err by stating 25 methamphetamine is a dangerous drug. Therefore, there was no context omitted in the 26 R & R’s footnote regarding the Court of Appeals’ holding. See State v. Bernal, No. 1 CA27 CR 18-0441, 2019 WL 949007 , at *3, ¶ 16 (Ariz. Ct. App. Feb. 26, 2019). Petitioner’s 28 objection is overruled. 1 D. Insufficiency of the Evidence 2 The R & R concluded that the appellate court’s decision—sufficient evidence 3 supported Petitioner’s conviction—was not lacking in justification. (Doc. 9 at 15.) 4 Petitioner objects to this finding because he asserts that he cannot be found guilty as an 5 accomplice if no principal defendant is identified. (Doc. 10 at 5.) He alleges Patrick 6 Johnson was the person who initially “engaged the officers in the drug transactions.” (Id. 7 at 4.) Petitioner believes Mr. Johnson to be a “confidential informant, enlisted and 8 engaged, perhaps to work off his own embroilment, and was actively serving those thought 9 to be likely drug dealers.” (Doc. 10 at 5.) Petitioner likewise complains about the poor 10 quality of the recording of the phone call where he negotiated the price of the 11 methamphetamine with the officers. (Id.) Petitioner highlights the indictment, which lists 12 his own name as “Defendant -002,” and Mr. Johnson is not listed. (Id.) Petitioner finally 13 asserts that “no connection of any kind was shown between the Petitioner and Mr. 14 Johnson.” (Id.) 15 “A reviewing court may set aside the jury’s verdict on the ground of insufficient 16 evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, [17] 565 U.S. 1, 2 (2011). To prevail on an insufficiency of the evidence claim, a federal habeas 18 court must presume that the trier of fact resolved any evidentiary conflicts in favor of the 19 prosecution and must defer to that resolution. Jackson v. Virginia, 443 U.S. 307 , 326 20 (1979). 21 The Arizona Court of Appeals found that because both officers testified that 22 Petitioner did not personally sell the methamphetamine, the jury was properly instructed 23 on accomplice liability. An accomplice is a person who, inter alia, “provides means or 24 opportunity to another person to commit the offense.” A.R.S. § 13-301(3). To prove 25 accomplice liability under A.R.S. § 13-303, the State must only prove “[t]he person is an 26 accomplice of such other person in the commission of an offense including any offense 27 that is a natural and probable or reasonably foreseeable consequence of the offense for 28 which the person was an accomplice.” A.R.S. § 13-303(a)(3). Petitioner’s criminal 1 liability under that statute did not depend on Mr. Johnson’s. Moreover, by negotiating the 2 price of the methamphetamine with Officer Elcock, Petitioner provided “means or 3 opportunity” for the sale of the methamphetamine to take place. A.R.S. § 13-301(3). On 4 this record, there is no basis to set aside the jury’s verdict. This Court therefore overrules 5 Petitioner’s objection to the R & R’s finding. 6 E. Conditions of Confinement 7 Petitioner finally objects to his conditions of confinement under the CARES Act. 8 (Doc. 10 at 6.) A habeas corpus proceeding is not the proper vehicle for Petitioner to 9 challenge the circumstances of his confinement. See Nelson v. Campbell, 541 U.S. 637 , 10 643 (2004) (“[C]onstitutional claims that merely challenge the conditions of a prisoner’s 11 confinement . . . may be brought pursuant to § 1983 in the first instance.”); Muhammad v. 12 Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to 13 particulars affecting its duration are the province of habeas corpus . . . ; requests for relief 14 turning on circumstances of confinement may be presented in a § 1983 action.”). 15 Moreover, though Petitioner asserts that his confinement in the prison violates 16 “Amendment XIV equal protection guarantees,” the Ninth Circuit has declined to resolve 17 the question of whether a claim asserting a violation of a prisoner's constitutional rights 18 based on the Covid-19 pandemic properly may sound in habeas. See, e.g., Wilson v. Ponce, [19] 465 F. Supp. 3d 1037 , 1047–49 (C.D. Cal. 2020), appeal dismissed, 2020 WL 6293689 20 (9th Cir. Oct. 19, 2020) (concluding that inmate claims premised on the asserted dangers 21 and risks posed by COVID-19 are not cognizable as habeas claims, because a claim 22 premised on the institutional conditions caused by the COVID-19 pandemic is not an attack 23 on the validity of the prisoner’s confinement or its duration, so habeas jurisdiction did not 24 exist); see also Alvarez v. Larose, 445 F. Supp. 3d 861 , 866 (S.D. Cal. 2020), appeal 25 dismissed, 2020 WL 8374097 (9th Cir. Oct. 15, 2020). Petitioner’s conditions of 26 confinement objection is overruled. 27 F. Certificate of Appealability 28 Before Petitioner can appeal this Court’s judgment, a certificate of appealability 1} mustissue. See 28 U.S.C. § 2253 (c); Fed. R. App. P. 22(b)(1). Because this Court rendered || the judgment denying the Petition, the Court must either issue a certificate of appealability || or state why a certificate should not issue. See id. A certificate may issue “only if the 4|| applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253 (c)(2). A substantial showing is made when the resolution of an issue of appeal is || debatable among reasonable jurists, if courts could resolve the issues differently, or if the || issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). 8 || Upon review of the record in light of the standards for granting a certificate of appealability, 9|| the Court finds that a certificate shall not issue either because dismissal of the Petition is 10 || justified by a “plain procedural bar,” id. at 484 , or because “jurists of reason” would not find the Court’s assessment of the constitutional claims “debatable or incorrect,” id. at 485 . IV. CONCLUSION 13 Accordingly, 14 IT IS ORDERED that Magistrate Judge Camille D. Bibles’ Report and 15 || Recommendation (Doc. 9) is adopted. 16 IT IS FURTHER ORDERED that Steven Thomas Bernal’s 28 U.S.C. § 2254 || Petition (Doc. 1) is dismissed with prejudice. 18 IT IS FURTHER ORDERED that the Court will not issue a certificate of || appealability because, for reasons explained above, Petitioner has not made a substantial 20 || showing of the denial of a constitutional right, a point on which reasonable jurists could || not disagree. 28 U.S.C. § 2253 (c)(2). 22 IT IS FINALLY ORDERED directing the Clerk of the Court to enter judgment 23 || terminating the case. 24 Dated this 11th day of March, 2022. [25] *° Wicheal T. Fburdle 27 Michael T. Liburdi 28 United States District Judge -9-