Grant v. Ryan

DOUGLAS D. GRANT, Petitioner,

v.CHARLES L. RYAN, et al., Respondents.

No. CIV 12-094-TUC-CKJ (DTF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

DATED: March 22, 2013

ORDER

On November 19, 2012, Magistrate Judge D. Thomas Ferraro issued a Report and Recommendation (Doc. 15) in which he recommended that the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody filed by Douglas D. Grant ("Grant") be dismissed on its merits. The magistrate judge advised the parties that written objections to the Report and Recommendation were to be filed within fourteen days of service of a copy of the Report and Recommendation pursuant to 28 U.S.C. § 636(b).

Report and Recommendation

This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." The statute does not "require [] some lesser review by [this Court] when no objections are filed." Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Rather, this Court is not required to conduct "anyreview at all . . . of any issue that is not the subject of an objection." Id. at 149.

The magistrate judge addressed Grant's claim in two subparts. As to Grant's first sub-claim, the magistrate judge determined that under the standard of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which states that a habeas corpus petition "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) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000), Grant was not entitled to relief on his claim that he did not receive adequate notice of the aggravators to be used at sentencing. The magistrate judge, in essence, recommends that the distinguishable cases of Cole v. Arkansas, 333 U.S. 196 (1948) and Gautt v. Lewis, 489 F.3d 993 (9th Cir. 2007), do not provide a clearly established federal law that was unreasonably applied because extending the holdings of the cases would be beyond the authority of the AEDPA. The magistrate judge also recommends that, even if Grant's arguments were supported by clearly established law, any error was harmless.

Grant's second sub-claim is that the aggravators should have been charged within the indictment pursuant to Blakely v. Washington, 542 U.S. 296 (2004). The magistrate judge recommends that this claim fails because "States are not required to indict criminal cases. Therefore, there cannot be a requirement that any particular facts must be charged in an indictment. Thus, it was not an unreasonable application of federal law for the state court to deny Petitioner's claim that the aggravators need to be charged in an indictment." Report and Recommendation, p. 7.

Objections to Report and Recommendation

Grant asserts the magistrate judge erred in not concluding that Cole, Gautt, and Sheppard v. Rees, 909 F.2d 1234 (9th Cir. 1990), supports his argument that he did not receive adequate notice of the aggravators. Indeed, Grant argues that the aggravators should have been noticed "before or during the trial as law requires." Objections, Doc. 16, p. 7. However, as discussed by the magistrate judge, Cole and Gautt involved situations where the defendants were convicted or received an enhanced sentence pursuant to statutes under which they were not charged. Similarly, Sheppard involved a situation where the defendant had received notice that he had to defend against a charge of murder, but had not been provided notice that he would have to defend against a charge of felony murder. In this case, however, Grant received notice of the charges against him. Further, he received notice of the sentencing aggravators.

Grant argues, however, that the six day notice of the aggravators was not adequate. However, the cases relied upon by Grant do not specify what constitutes adequate notice. The Court agrees with the magistrate judge that the Court cannot conclude that a clearly established federal law was unreasonably applied. Rather, the clearly established federal law does not specify adequate notice. Indeed, the Ninth Circuit has determined that notice provided thirteen days before a sentencing is adequate. See Ortiz v. Stewart, 149 F.3d 923 (9th Cir. 1998). Further, another district court has determined that adequate notice was provided when the State's sentencing memorandum listed aggravating circumstances. See Tomchee v. Ryan, No. 09-1367-PHX-NVW (MHB), 2010 WL 1452856 *5 (D. Ariz. 2010), citing State v. Jenkins, 193 Ariz. 115, 970 P.2d 947, 953 (App. 1998) (in second-degree murder case, notice of aggravating factors in state's presentencing memorandum satisfied due process); State v. Marquez, 127 Ariz. 3, 617 P.2d 787, 789 (App.1980) (no error when trial court sua sponte found aggravating circumstances from record even though "prosecutor had neither alleged nor attempted to separately prove" them); State v. Ford, 125 Ariz. 8, 606 P.2d 826, 827 (App.1979) (presentence report provided adequate notice of aggravatingcircumstances).

Grant also appears to be arguing that, regardless of the number of days notice provided to him, the notice was not adequate because he was not able to present the relevant testimony of expert witnesses. The magistrate judge pointed out, however, Grant did not "allege what any witness would have testified to or that with additional notice he could have presented a defense and the aggravators would not have been found by the jury." Report and Recommendation, p. 6. In his Objections, Grant now proffers what evidence to which he believes the witnesses would have testified. However, Grant did not present this claim to the State courts and the claim is technically exhausted.

Indeed, before a federal court may review a petitioner's claims on the merits, a petitioner must exhaust his state remedies, i.e., have presented in state court every claim raised in the federal habeas petition. See Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999) (a state prisoner in a federal habeas action must exhaust his claims in the state courts "by invoking one complete round of the State's established appellate review process" before he may submit those claims in a federal habeas petition); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). Exhaustion of state remedies is required in order to give the "State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights . . . To provide the State with the necessary opportunity, the prisoner must fairly present his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004), internal quotation marks and citations omitted; see also Gentry v. Sinclair, 693 F.3d 867 (9th Cir. 867 (9th Cir. 2012).

Furthermore, if Grant now attempted to return to the Arizona court system to exhaust this claim, he would be procedurally barred from raising this claim. See e.g., Harris v. Reed, 489 U.S. 255, 269-70, 109 S.Ct. 1038, 1046-47, 103 L.Ed.2d 308 (1989) (O'Connor, J. concurring) (noting that if a claim was not fairly presented in the state court, then the federalcourt must determine whether there are state remedies available). Grant's claim would be procedurally defaulted as "waived at trial, on appeal, or in any previous collateral proceeding" pursuant to Ariz.R.Crim.P. 32.2(a)(3). Ariz.R.Crim.P. By not presenting this issue to the trial court or appellate court, Grant waived this claim.

Moreover, under Arizona law, a petitioner who was convicted at trial must file a Notice of Post-Conviction Relief within 90 days of the entry of judgment and sentence or within 30 days of the order and mandate affirming the judgment and sentence on direct appeal, whichever is later. Ariz.R.Crim.P. 32.4(a). Grant did not previously pursue post-conviction relief in the state courts and Grants' claim does not qualify for any of the timeliness exceptions of the state post-conviction procedures:

(d) The person is being held in custody after the sentence imposed has expired;

(e) Newly discovered material facts probably exist and such facts probably would have changed the verdict or sentence . . . ;

(f) The defendant's failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was without fault on the defendant's part; or

(g) There has been a significant change in the law that if determined to apply to defendant's case would probably overturn the defendant's conviction or sentence; or

(h) The defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt, or that the court would not have imposed the death penalty.

Ariz.R.Crim.P. 32.1, 32.2(b), and 32.4(a). Indeed, "nothing in . . . Rule 32 suggests a pleading defendant is relieved from Rule 32.4(a)'s mandate that '[a]ny notice not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h).'" State v. Jimenez, No. 2...