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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Jahmmal Terrel Brumfield,

Petitioner,

v. 

Charles L. Ryan, et al.,

Respondents.

No. CV-15-1891-PHX-JJT (ESW)

REPORT AND 

RECOMMENDATION

TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:

Pending before the Court is Jahmmal Terrel Brumfield’s (“Petitioner”) Petition 

under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (the “Petition”) (Doc. 1). 

Respondents have filed their Answer (Doc. 13), to which Petitioner has not replied. The 

matter is deemed ripe for consideration. 

Petitioner raises three grounds for habeas relief in the Petition. Respondents do 

not argue, and the undersigned does not find, that the Petition is barred by the one-year 

statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 

1996, 110 Stat. 1214.1

 The undersigned, however, finds that all three grounds are 

procedurally defaulted. It is therefore recommended that the Petition be dismissed with 

prejudice. 

1 The one-year statute of limitations for a state prisoner to file a federal habeas petition is codified at 28 U.S.C. § 2244(d). 

 

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I. BACKGROUND 

In 2014, a Yuma County Grand Jury indicted Petitioner on the charge of failing to 

register as a sex offender between September 3, 2014 through October 30, 2014. (Doc. 

13-1 at 19-20). Petitioner pled guilty to the amended charge of attempted failure to 

register as a sex offender, a class five felony, committed between September 3, 2014 and 

October 30, 2014. (Id. at 28-30; 34-38). The trial court accepted Petitioner’s guilty plea. 

(Id. at 38, 41). 

On April 10, 2015, the trial court sentenced Petitioner to the presumptive term of 

1.5 years. (Id. at 75, 79-82). Petitioner did not seek post-conviction relief (“PCR”).

2

II. LEGAL STANDARDS

A. Exhaustion-of-State-Remedies Doctrine

It has been settled for over a century that a “state prisoner must normally exhaust 

available state remedies before a writ of habeas corpus can be granted by the federal 

courts.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 

U.S. 270, 275 (1971) (“It has been settled since Ex parte Royall, 117 U.S. 241, 6 S. Ct. 

734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state 

judicial remedies before a federal court will entertain his petition for habeas corpus.”). 

The rationale for the doctrine relates to the policy of federal-state comity. Picard, 404 

U.S. at 275 (1971). The comity policy is designed to give a state the initial opportunity to 

review and correct alleged federal rights violations of its state prisoners. Id. In the U.S. 

Supreme Court’s words, “it would be unseemly in our dual system of government for a 

federal district court to upset a state court conviction without an opportunity to the state 

courts to correct a constitutional violation.” Darr v. Burford, 339 U.S. 200, 204 (1950); 

see also Reed v. Ross, 468 U.S. 1, 11 (1984) (“[W]e have long recognized that in some 

2 Under Arizona law, a defendant in a non-capital case who pleads guilty waives his or her right to a direct appeal. See ARIZ.REV.STAT. § 13–4033(B). A plea-convicted 

defendant, however, is entitled to a Rule 32 (PCR) of-right proceeding. See Ariz. R. 

Crim. P. 32.1 and 32.4. 

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circumstances considerations of comity and concerns for the orderly administration of 

criminal justice require a federal court to forgo the exercise of its habeas corpus power.”) 

(citations and internal quotation marks omitted).

The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that 

a habeas petition may not be granted unless the petitioner has (i) “exhausted” the 

available state court remedies; (ii) shown that there is an “absence of available State 

corrective process”; or (iii) shown that “circumstances exist that render such process 

ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). 

B. Procedural Default Doctrine

If a claim was presented in state court, and the court expressly invoked a state 

procedural rule in denying relief, then the claim is procedurally defaulted in a federal 

habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). 

Even if a claim was not presented in state court, a claim may be procedurally defaulted in 

a federal habeas proceeding if the claim would now be barred in state court under the 

state’s procedural rules. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).

Similar to the rationale of the exhaustion doctrine, the procedural default doctrine 

is rooted in the general principle that federal courts will not disturb state court judgments 

based on adequate and independent state grounds. Dretke v. Haley, 541 U.S. 386, 392 

(2004). A habeas petitioner who has failed to meet the state’s procedural requirements 

for presenting his or her federal claims has deprived the state courts of an opportunity to 

address those claims in the first instance. Coleman v. Thompson, 501 U.S. 722, 731-32

(1991). 

A procedural default determination requires a finding that the relevant state 

procedural rule is an adequate and independent rule. See id. at 729-30. An adequate and 

independent state rule is clear, consistently applied, and well-established at the time of a 

petitioner’s purported default. Greenway v. Schriro, 653 F.3d 790, 797-98 (9th Cir. 

2011); see also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 74-75 (9th Cir. 1996). 

An independent state rule cannot be interwoven with federal law. See Ake v. Oklahoma, 

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470 U.S. 68, 75 (1985). The ultimate burden of proving the adequacy of a state 

procedural bar is on the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). 

If the state meets its burden, a petitioner may overcome a procedural default by proving 

one of two exceptions. 

In the first exception, the petitioner must show cause for the default and actual 

prejudice as a result of the alleged violation of federal law. Hurles v. Ryan, 752 F.3d 

768, 780 (9th Cir. 2014). To demonstrate “cause,” a petitioner must show that some 

objective factor external to the petitioner impeded his or her efforts to comply with the 

state’s procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Robinson v. 

Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). To demonstrate “prejudice,” the petitioner 

must show that the alleged constitutional violation “worked to his actual and substantial 

disadvantage, infecting his entire trial with error of constitutional dimensions.” United 

States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 (“Such a 

showing of pervasive actual prejudice can hardly be thought to constitute anything other 

than a showing that the prisoner was denied ‘fundamental fairness’ at trial.”). 

In the second exception, a petitioner must show that the failure to consider the 

federal claim will result in a fundamental miscarriage of justice. Hurles, 752 F.3d at 780. 

This exception is rare and only applied in extraordinary cases. Wood v. Ryan, 693 F.3d 

1104, 1118 (9th Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). The 

exception occurs where a “constitutional violation has probably resulted in the conviction 

of one who is actually innocent of the offense that is the subject of the barred claim.” Id.

at 1117 (quoting Schlup, 513 U.S. at 327). 

III. ANALYSIS 

A. All Three Grounds for Habeas Relief are Procedurally Defaulted

Petitioner challenges his conviction for attempted failure to register as a sex 

offender between September 3, 2014 and October 30, 2014 on three grounds. In Ground 

One, Petitioner asserts that he completed a sex registration form on October 6, 2014 and 

his defense counsel was ineffective for failing to obtain a copy of that registration form. 

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(Doc. 1 at 4). In Ground Two, Petitioner states that he “had the evidence to exonerate 

him provided his guarantee provided pursuant to the Sixth Amendment had at least been 

scratched and his guarantee to due process pursuant to the Fourteenth Amendment been 

at the minimum sniffed at.” (Id. at 5).3

 Finally, in Ground Three, Petitioner alleges that 

he was “denied due process by the filing clerk of the Yuma County Sherriff’s Office. 

The clerk signed the updated form dated 10-6-14. The police involved in the matter

failed to properly investigate the matter, which would have turned up the updated 

registration form as well.” (Id. at 6).

In order to satisfy the exhaustion-of-state-remedies doctrine, Petitioner, as a pleaconvicted defendant, must have first presented the above claims to the trial court in a 

PCR petition. See Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (“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”). Then, Petitioner must have petitioned the Arizona Court of Appeals for 

review of the trial court’s ruling on the PCR petition. See Castillo v. McFadden, 399 

F.3d 993, 998 (9th Cir. 2005) (in noncapital cases, “claims of Arizona state prisoners are 

exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on 

them”) (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). 

Petitioner concedes that he has not presented any of his habeas claims in state 

court and that the time to file a PCR notice has expired. (Doc. 1 at 4-6). Thus, none of 

3 Petitioner also alleges “actual innocence” and states that he “is entitled to relief 

under the Fundamental Miscarriage of Justice Exception.” To the extent Petitioner 

presents a freestanding actual innocence claim, it is an open question whether a federal 

habeas petitioner in a non-capital case may raise a freestanding claim 

of actual innocence. See Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014) (“We have 

not resolved whether a freestanding actual innocence claim is cognizable in a 

federal habeas corpus proceedings in the non-capital context . . . .”); Osborne v. Dist. 

Attorney’s Office for the Third Judicial Dist., 521 F.3d 1118, 1131 (9th Cir.

2008)(“assum[ing] for the sake of argument that such claims are cognizable in federal habeas proceedings in both capital and non-capital cases . . . .”), rev’d on other grounds, 557 U.S. 52 (2009). Even if a freestanding claim of actual innocence is cognizable in a 

non-capital case, Petitioner has failed to meet the “extraordinarily high” threshold of “affirmatively prov[ing] that he is actually innocent” for the reasons discussed in Section 

III(B) below regarding the miscarriage of justice exception. Carriger v. Stewart, 132 

F.3d 463, 477 (9th Cir.1997) (en banc).

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the claims have been exhausted. Castillo, 399 F.3d at 998. Rules 32.2(b) and 32.4(a), 

Ariz. R. Crim. P., do not bar untimely claims that fall within the categories set forth in 

Ariz. R. Crim. P. 32.1(d) through (h):

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. Newly discovered material facts exist if:

(1). The newly discovered material facts were 

discovered after the trial.

(2). The defendant exercised due diligence in 

securing the newly discovered material facts.

(3). The newly discovered material facts are not 

merely cumulative or used solely for 

impeachment, unless the impeachment evidence 

substantially undermines testimony which was 

of critical significance at trial such that the 

evidence 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.

Petitioner does not assert that any of the above exceptions apply to his claims.4

 

Nor does it appear that any of the exceptions would apply. As Respondents explain, the 

sex registration form dated October 6, 2014 would not constitute a “newly discovered 

material fact” under Ariz. R. Crim. P. 32.1(e) as Petitioner had knowledge of the form 

4 In fact, Petitioner explicitly states in the section pertaining to Ground Three that “[a]ny attempt [to return to state court] at this point would be futile.” (Doc. 1 at 6). 

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when he pled guilty.5 (Doc. 13-1 at 44, 49-50). All three grounds are deemed 

procedurally defaulted as adequate and independent state procedural rules would preclude 

Petitioner from returning to the trial court to exhaust his habeas claims. See Beaty, 303 

F.3d at 987 (a claim is procedurally defaulted “if 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 requirement would now find the claims procedurally barred”) (quoting 

Coleman, 501 U.S. at 735 n.1)). 

B. Petitioner’s Procedural Defaults are Not Excused

The merits of a habeas petitioner’s procedurally defaulted claims are to be 

reviewed if the petitioner (i) shows cause for the default and actual prejudice as a result 

of the alleged violation of federal law or (ii) shows that the failure to consider the federal 

claim will result in a fundamental miscarriage of justice. McKinney v. Ryan, 730 F.3d 

903, 913 (9th Cir. 2013). 

Petitioner explains that he did not raise the issues presented in the Petition (Doc. 

1) to the state court because he was not aware that he had a colorable claim “due to the 

lack of understanding from a legal standpoint.” (Doc. 1 at 4). Petitioner also states that 

he “lack[ed] understanding of the process.” (Id. at 5). Petitioner’s status as a pro se 

litigant does not constitute a legitimate cause for failing to initiate a PCR proceeding. See 

Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908 (9th Cir. 1986) (cause not 

established in case of illiterate petitioner who relied on the assistance of another inmate 

who was released, stating that “[t]o hold that illiteracy is a legitimate cause for failing to 

appeal to the state supreme court would allow petitioners to wait until the jurisdictional 

period lapsed and then proceed directly to federal court. Such a result would be contrary 

5 Even if Petitioner did not have knowledge of the October 6, 2014 form when he pled guilty, Petitioner cannot show that it probably would have changed the outcome as required by Ariz. R. Crim. P. 32.1(e). As explained in the following section, evidence 

showed that Petitioner moved from his previously registered address on or before 

September 3, 2014. October 6, 2014 is well after the mandatory 72 hour deadline to complete an updated sex registration form. ARIZ. REV. STAT. § 13-3822(A).

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to the principles of comity underlying the cause and prejudice rule.”); Tacho v. 

Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (illiterate petitioner with a mental 

condition who relied upon incompetent “jailhouse lawyers” failed to show cause). 

Because Petitioner has not shown that an objective factor external to Petitioner impeded 

his efforts to initiate a PCR proceeding, Petitioner has failed to show cause for his 

procedural defaults. Where a petitioner fails to establish cause, the Court need not 

consider whether the petitioner has shown actual prejudice resulting from the alleged 

constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). Accordingly, the 

undersigned finds that Petitioner has not satisfied the “cause and prejudice” exception to 

excuse his procedural defaults.

The fundamental miscarriage of justice exception, also referred to as the Schlup 

gateway, applies “only when a petition presents ‘evidence of innocence so strong that a 

court cannot have confidence in the outcome of the trial unless the court is also satisfied 

that the trial was free of nonharmless constitutional error.’” McQuiggin v. Perkins, 133 

S. Ct. 1924, 1936 (2013). “To be credible, such a claim requires petitioner to support his 

allegations of constitutional error with new reliable evidence–whether it be exculpatory 

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Id. at 

324. Because of “the rarity of such evidence, in virtually every case, the allegation of 

actual innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 

(9th Cir. 2000) (citing Calderon v. Thomas, 523 U.S. 538, 559 (1998)).

Petitioner admitted that between September 3, 2014 and October 30, 2014, he 

committed the crime of attempted failure to register as a sex offender. (Doc. 13-1 at 28-

30; 34-38). Petitioner contends that he is innocent because on October 6, 2014, he 

completed a sex offender registration form with his updated address. (Doc. 1 at 4-5). 

Respondents have provided a copy of the October 6, 2014 form. (Doc. 13-1 at 49-50). 

However, Petitioner has not offered any new evidence showing that the October 6, 2014 

form was completed within 72 hours of moving from his previously registered address.

6

 

6 Because it does not affect the outcome, the undersigned has assumed arguendo 

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As Respondents explain, police officers discovered that on September 3, 2014, Petitioner 

was not living at his previously registered address. (Doc. 13 at 22; Doc. 13-1 at 6-7, 10). 

If Wednesday, September 3, 2014 is used as the date Petitioner moved from his 

previously registered address, Petitioner’s updated sex registration form was due on 

Monday, September 8, 2014.7

 Therefore, Petitioner’s October 6, 2014 registration form 

does not show actual innocence.8

 After reviewing the record, the undersigned finds no 

evidence showing that a constitutional violation has probably resulted in the conviction of 

an innocent man. The undersigned thus finds the miscarriage of justice exception 

inapplicable to this case. Consequently, the undersigned recommends that the Court not 

excuse Petitioner’s procedural defaults.

IV. CONCLUSION

Based on the foregoing reasons, the undersigned recommends that the Court deny 

and dismiss the Petition (Doc. 1) with prejudice.

Accordingly,

IT IS RECOMMENDED that the Petition (Doc. 1) be DENIED and 

DISMISSED WITH PREJUDICE.

IT IS FURTHER RECOMMENDED that a certificate of appealability and leave

that the October 6, 2014 form may qualify as “newly presented” evidence of actual innocence for purposes of the Schlup gateway. See Griffin v. Johnson. 350 F.3d 956, 963 

(9th Cir. 2003) (Schlup gateway claims require only “newly presented” evidence of actual innocence; hospital records that were in petitioner’s possession, but not presented to the trial court prior to accepting plea bargain qualified as “newly presented” evidence 

for purposes of the Schlup gateway).

7 Weekends and legal holidays are excluded from the 72 hour deadline. ARIZ. REV. STAT. § 13-3822(A).

8 Moreover, it is unclear “whether the Schlup actual innocence gateway always applies to petitioners who plead guilty.” Smith v. Baldwin, 510 F.3d 1127, 1140 n.9 (9th 

Cir. 2007) (“We are aware of a potential incongruity between the purpose of the actual 

innocence gateway announced in Schlup and its application to cases involving guilty (or no contest) pleas. . . . For purposes of our analysis, however, we assume without deciding that the actual innocence gateway is available to [the plea-convicted habeas 

petitioner].”). Decisions in which the Ninth Circuit or United States Supreme Court have considered gateway claims of actual innocence in a plea context involved subsequent 

case law that arguably rendered the defendant’s acts non-criminal. See, e.g. Bousley v. United States, 523 U.S. 614, 621-23 (1998); Vosgien v. Persson, 742 F.3d 1131, 1134-35 

(9th Cir. 2013); U.S. v. Avery, 719 F.3d 1080, 1084-85 (9th Cir. 2013).

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to proceed in forma pauperis on appeal be denied because dismissal of the Petition is 

justified by a plain procedural bar. 

This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) 

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 recommendation within which to 

file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 

6, 72. Thereafter, the parties have fourteen days within which to file a response to the 

objections. Failure to file timely 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 file timely objections to any factual determinations of the 

Magistrate Judge may be considered a waiver of a party’s right to appellate review of the 

findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s 

recommendation. See Fed. R. Civ. P. 72. 

Dated this 9th day of September, 2016. 

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