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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

William Franklin Ely, 

Petitioner, 

v. 

Bennie Rollins, et al., 

Respondents.

No. CV 17–8277–PCT–JAT 

ORDER 

 Pending before the Court is Petitioner’s pro se Petition for a Writ of Habeas 

Corpus under 28 U.S.C. § 2254. (Doc. 1). The Magistrate Judge to whom this case is 

assigned issued a Report and Recommendation (R&R) recommending that the Petition be 

denied. (Doc. 8). Petitioner filed objections to the R&R. (Docs. 13 & 15). 

 I. Review of R&R 

This Court “may accept, reject or modify in whole or in part, the findings or 

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district 

court must review the magistrate’s findings de novo only if a party objects to the 

magistrate’s findings or recommendations. United States v. Reyna-Tapia, 328 F.3d 1114, 

1121 (9th Cir. 2003) (en banc). However, if no party objects to any fact or issue, the 

district court is not required to engage in “any review at all . . . .” Thomas v. Arn, 474 

U.S. 140, 149 (1985). Therefore, the Court will review the objected-to recommendations 

de novo.

 II. Petition for Writ of Habeas Corpus 

 The Petitioner raises one ground for relief in his timely petition. The R&R finds 
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that the Petitioner’s claim is procedurally defaulted without excuse. The R&R recounts 

the factual and procedural background of this case at pages 1–4. Neither party objects to 

this recounting. Accordingly, the Court accepts and adopts it. 

 Petitioner claims that “imposition of a mandated consecutive term of community 

supervision to a flat-time term of confinement constitutes being punished twice for the 

same offense,” in violation of his Fifth Amendment right against Double Jeopardy (Doc. 

1 at 6). The R&R concludes that because Petitioner failed to raise the present claim in his 

direct appeal to the Arizona Court of Appeals, 28 U.S.C. § 2254(b) precludes his claim 

from being brought in federal court and it is procedurally defaulted without excuse (Doc. 

8 at 3). 

A. Petitioner’s Claim for Relief is Procedurally Defaulted 

 An application for a writ of habeas corpus shall not be granted unless is appears 

that “the applicant has exhausted the remedies available in the courts of the State.” 28 

U.S.C. § 2254(b)(1)(A). “An applicant shall not be deemed to have exhausted the 

remedies available in the courts of the State, within the meaning of the section, if he has 

the right under the law of the State to raise, by any available procedure, the question 

presented.” 28 U.S.C. § 2254(c). A state prisoner must exhaust available state remedies, 

in order to give the state the “opportunity to pass upon and correct” alleged violations of 

its prisoners’ federal rights. Baldwin v. Reese, 541 U.S. 27, 29 (2004). To provide the 

state with this opportunity, the prisoner must “fairly present” his claim to the state’s 

highest court. Id. This thereby alerts the state court to the federal nature of the claim. Id. 

A claim is not “fairly presented” if the judges of the highest court in the state can 

discover the claim only by reading the lower court opinions in the case. Id. at 31. To be 

“fairly presented” a claim must be presented (1) in the proper forum, (2) through the 

proper vehicle, and (3) with the proper factual and legal basis for the claim. 

Insyxiemngmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005). 

 Petitioner objects to the R&R’s conclusion that his claim for relief is procedurally 

defaulted. (Doc. 13 at 2). Petitioner alleges a violation of his due process rights during his 
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post-conviction-review (“PCR”) proceedings when the Superior Court denied him an 

evidentiary hearing on whether his sentence exceeded the maximum allowed in the 

sentencing statute. (Id.) Accordingly, Petitioner alleges, his claim cannot be procedurally 

barred because it was clear error for the Superior Court to preclude review of his illegal 

sentence. (Doc. 13 at 4). Petitioner’s objections do not address his failure to raise the 

Double Jeopardy claim on direct appeal in state court, which is the reason the claim is 

procedurally defaulted. As explained above, Petitioner’s failure to present the Double 

Jeopardy claim means that his claim is now procedurally barred. See 28 U.S.C. § 

2254(b). 

B. Petitioner Has No Excuse for Procedural Default 

“Where a defendant has procedurally defaulted a claim [], the claim may be raised 

in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice’ 

or that he is ‘actually innocent.’” U.S. v. Braswell, 501 F.3d 1147, 1149 (9th Cir. 2007) 

(quoting Bousley v. United States, 523 U.S. 614, 622 (1998)). A showing of “cause” 

ordinarily requires the prisoner to show some external factor impeded the prisoner in 

complying with the state procedural rules. Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th 

Cir. 2004). External factors include the reasonable unavailability of a factual or legal 

claim at the time of the direct appeal, or interference by government officials which 

prevented the claim from being brought earlier. Braswell, 501 F.3d at 1150. The prisoner 

must show actual prejudice, not just the possibility of prejudice. Id. 

Petitioner argues that the Court should still review the merits of his procedurally 

defaulted claim because he has shown cause and prejudice. (Doc. 13 at 7). He alleges that 

his appellate counsel did not argue the double jeopardy claim on direct appeal, thereby 

impeding his ability to comply with the rules. (Doc. 1 at 15). However, a claim of 

ineffective assistance of appellate counsel must itself be exhausted. Davila v. Davis, 137 

S.Ct. 2058, 2065–69 (2017); see also Martinez v. Ryan, 566 U.S. 1, 14 (2012) (allowing 

an exception to the exhaustion requirement for claims of ineffective assistance of only 

trial counsel if such failure to exhaust was caused by the ineffective assistance of post-
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conviction relief counsel). Thus, Petitioner has not presented any outside evidence that an 

external force impeded him in his ability to bring the Double Jeopardy claim on direct 

review, and the procedural default is therefore not excused for cause. 

 Even assuming arguendo that the Court could reach the merits of Petitioner’s 

Petition, his claim nonetheless fails. The Double Jeopardy Clause protects against the 

imposition of multiple punishments for the same criminal offense. Moor v. Palmer, 603 

F.3d 658, 660 (9th Cir. 2010). Parole revocation is not a criminal penalty for violating the 

terms of parole; it is a continuation of punishment for the original offense and does not 

trigger the protections of the Double Jeopardy Clause. Id. Furthermore, under Arizona 

law, a requirement of community supervision is simply a part of the original sentence and 

does not violate the Double Jeopardy Clause. State v. Jenkins, 970 P.2d 947, 952 (Ariz. 

Ct. App. 1998). 

 Petitioner further argues for the Court to excuse his default because he has shown 

“actual innocence.” (Doc. 13 at 7). To satisfy the standard for “actual innocence,” a 

habeas petitioner must show that because of a Constitutional error, it is more likely than 

not that no reasonable juror would have found him guilty beyond a reasonable doubt. 

Schlup v. Delo, 513 U.S. 298, 322 (1995). Neither the Supreme Court nor the Ninth 

Circuit has extended a finding of actual innocence to apply to a sentencing issue; actual 

innocence requires a petitioner to show he is innocent of the crime for which he is 

incarcerated. Gandarela v. Johnson, 286 F.3d 1080, 1085 (9th Cir. 2001). Petitioner 

argues that he has committed no additional crime to warrant additional criminal 

punishment of community supervision. (Doc. 13 at 14). As stated above, however, parole 

revocation is not an additional criminal punishment under the Double Jeopardy Clause. 

Moor, 603 F.3d at 660. Additionally, Arizona law recognizes community supervision as 

simply a part of the original sentence. Jenkins, 970 P.2d at 952. Petitioner has not 

provided any evidence to prove he would have been found not guilty of the crime for 

which he is incarcerated, and therefore is not excused of his default by “actual 

innocence.” 
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 III. Conclusion 

For the reasons stated above, 

 IT IS THEREFORE ORDERED that the Report and Recommendation, (Doc. 

8), is accepted. Petitioner’s objections, (Docs. 13 & 15), are overruled. The Clerk of 

Court shall enter judgment denying and dismissing the Petition with prejudice. 

IT IS FINALLY ORDERED that pursuant to Rule 11 of the Rules Governing 

Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a 

certificate of appealability because dismissal of the petition is based on a plain procedural 

bar, jurists would not find this Court’s procedural ruling debatable. Slack v. McDaniel, 

529 U.S. 473, 484 (2000). 

 Dated this 26th day of September, 2018.