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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

Daisy Daniels,

Petitioner, 

v. 

Julie Frigo, et al., 

Respondents.

No. CV-15-1867-PHX-PGR (DKD)

REPORT AND RECOMMENDATION 

TO THE HONORABLE PAUL G. ROSENBLATT, SENIOR U.S. DISTRICT JUDGE: 

 Daisy Daniels filed a Second Amended Petition for Writ of Habeas Corpus 

challenging her conviction and sentence for aggravated assault. Respondents raise 

several arguments against granting her relief. As explained below, the Court 

recommends that Daniels’ petition be denied and dismissed with prejudice. 

Background 

 In February 2011, shortly after Daniels was charged by direct complaint with one 

count of disorderly conduct, a Maricopa County Superior Court grand jury returned a 

supervening indictment for one count of aggravated assault. (Doc. 22, Exs. B, C) 

Pursuant to the Court’s Order, Daniels was issued a Notice of Supervening Indictment. 

(Doc. 22, Exs. D, E, F) The State also alleged that Daniels had historical priors, prior 

felony convictions, and aggravating conditions. (Doc. 22, Exs. G, H, I) 

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 After Daniels requested to waive her right to counsel at her initial pretrial 

conference, the Court conducted a hearing on her request. (Doc. 22, Ex. J) At the 

conclusion of the colloquy, the Court found that Daniels had “knowingly, intelligently, 

and voluntarily” waived her right to counsel and accepted her waiver. (Id.) The case 

continued and, during the third day of trial, the Court granted Daniels’ request to have 

advisory counsel represent her. (Doc. 22, Ex. K) 

 At the close of the five day trial, a jury found Daniels guilty of one count of 

aggravated assault. (Doc. 22, Ex. L) The Court found Daniels had four prior felony 

convictions and sentenced her to a presumptive term of 11.25 years. (Doc. 22, Exs. M, 

N) 

 Daniels timely initiated appellate proceedings. (Doc. 22, Ex. P) Her appellate 

counsel filed an opening brief pursuant to Anders v. California, 386 U.S. 738 (1967), and 

asked the Court to allow her to file a pro per supplement. (Doc. 22, Exs. Q, R) After she 

did so, the Arizona Court of Appeals affirmed her conviction and sentence in a decision 

that addressed several of Daniels’ arguments, including that the Fifth Amendment’s 

Double Jeopardy clause was violated when she was charged by direct complaint and then 

by supervening indictment. (Doc. 22, Exs. S, T, U) 

 Daniels then timely filed a notice of post-conviction relief and the Court granted 

her request for appointed counsel. (Doc. 22, Ex. W) Appointed counsel reviewed the file 

and informed the Court that she would not file a petition. (Doc. 22, Ex. X) Pursuant to 

the Court’s Order, Daniels filed a pro per petition and several supplements. (Doc. 22, 

Exs. Y, Z, AA, BB, CC, DD) The State’s response claimed that Daniels raised no 

colorable claims for relief. (Doc. 22, Ex. EE) The Court agreed and dismissed her 

petition in October 2014. (Doc. 22, Ex. FF) It appears that Daniels did not petition the 

Arizona Court of Appeals for review. Instead, Daniels filed several additional motions in 

Maricopa County Superior Court which were construed as requests for further postconviction relief and denied. (Doc. 22, Exs. GG, HH, II, JJ) 

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 In September 2015, Daniels filed a petition for writ of habeas corpus in this Court. 

(Doc. 1) She requested, and received, an extension to file an amended petition. (Docs. 6, 

7) She filed an amended petition which the Court considered timely and dismissed 

without prejudice and with leave to amend. (Docs. 8, 13) She timely filed a second 

amended petition and the Court ordered Respondents to answer it. (Docs. 14, 15) She 

also filed an affidavit and later amended it. (Docs. 21, 23) 

 Respondents raise various reasons that Daniels is not entitled to relief. (Doc. 22) 

Daniels’ reply contained several exhibits and argues that this is “newly discovered 

evidence [that] would probably would [sic] result in an acquittal.” (Doc. 28 at 2) As 

described below, Daniels is not entitled to relief. 

Legal Standards

 Habeas Review. On habeas review, this Court can only grant relief if the 

petitioner demonstrates prejudice because the adjudication of a claim either “(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). This 

is a “‘highly deferential standard for evaluating state-court rulings’ which demands that 

state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 

19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)). 

 Exhaustion of Remedies. A state prisoner must properly exhaust all state court 

remedies before this Court can grant an application for a writ of habeas corpus. 28 

U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. 

Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies 

by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate 

manner. O’Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 

F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). To 

be fairly presented, a claim must include a statement of the operative facts and the 

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specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. 

Netherland, 518 U.S. 152, 162-63 (1996); Duncan, 513 U.S. at 365-66. 

 Procedural Default. A claim can also be subject to an express or implied 

procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express 

procedural bar exists if the state court denies or dismisses a claim based on a procedural 

bar “that is both ‘independent’ of the merits of the federal claim and an ‘adequate’ basis 

for the court’s decision.” Harris v. Reed, 489 U.S. 255, 260 (1989). Stewart v. Smith, 

536 U.S. 856, 860 (2002) (Arizona’s “Rule 32.2(a)(3) determinations are independent of 

federal law because they do not depend upon a federal constitutional ruling on the 

merits”); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist 

when a state strictly or regularly follows its procedural rule). See also Ylst v. 

Nunnemaker, 501 U.S. 797, 801 (1991); Robinson, 595 F.3d at 1100. 

 An implied procedural bar exists if a claim was not fairly presented in state court 

and no state remedies remain available to the petitioner. Teague v. Lane, 489 U.S. 288, 

298-99 (1989); Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 

975, 987 (9th Cir. 2002); Poland v. Stewart, 169 F.3d 573, 586 (9th Cir. 1999); White v. 

Lewis, 874 F.2d 599, 602 (9th Cir. 1989).

 This Court can review a procedurally defaulted claim if the petitioner can 

demonstrate either cause for the default and actual prejudice to excuse the default, or a 

miscarriage of justice. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 

(1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986);

States v. Frady, 456 U.S. 152, 167-68 (1982). 

Daniels is not eligible for relief. 

Double Jeopardy Claim. Respondents argue that one of Daniels’ claims – that her 

Fifth Amendment double jeopardy rights were violated – is eligible for habeas review but 

that she is not entitled to relief on this claim. (Doc. 22 at 25-29) Because it appears that 

Daniels raised this claim in her federal habeas petition, and because this claim was 

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presented and analyzed by the Arizona Court of Appeals as a question under the U.S. 

Constitution, it is ripe for habeas review by this Court. (Doc. 22, Ex. T) 

 The Court of Appeals concluded that Daniels’ double jeopardy rights were not 

violated because she “was prosecuted only once and received only one sentence for the 

charged offense. Although the State dismissed its initial complaint and obtained a 

supervening indictment prior to Daniels’ preliminary hearing, it was allowed by law to do 

so.” (Doc. 22, Ex. T at ¶ 10) This is not contrary to, or an unreasonable application of, 

clearly established Federal law. Accordingly, Daniels is not entitled to habeas relief for 

this claim. 

 All Remaining Claims. Respondents raise several reasons why Daniels’ 

remaining claims are not properly before the Court. (Doc. 25 at 9-24) Respondents 

argue that these claims were not properly presented to the Arizona Court of Appeals, it is 

now too late to do so, and, in any event, cannot be considered by this Court because they 

are not cognizable under federal habeas law.1

 The Court agrees. 

 To meet the exhaustion requirement, Daniels needed to fairly present her claims to 

the Arizona Court of Appeals by providing the facts underlying her claim and the federal 

basis of those claims. As Daniels acknowledged in her petition to this Court, she did not 

present these claims to the Arizona Court of Appeals. (Doc. 14 at 7-9) It is now too late 

to do so. Accordingly, these claims were not exhausted. 

 In addition, Daniels’ claims are now subject to an implied procedural bar because 

her claims were not fairly presented in state court and no state remedies remain available 

to her because she is now precluded or time-barred from raising her claims in a 

successive and untimely Rule 32 petition under Arizona Rules of Criminal Procedure 

32.1(d)-(h), 32.2(a) & (b), or 32.4(a). 

Daniels has not demonstrated either cause for the default and actual prejudice to 

excuse the default, or a miscarriage of justice. Daniels does state that she is “not guilty of 

 

1

 Respondents’ argument that Daniels’ habeas petition was untimely is not well- taken because the Court ordered that her amended petition would be considered timely filed. (Doc. 13) 

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the charge of aggravate[d] assault.” (Doc. 14 at 11) She repeated this claim in an 

affidavit that she filed in this matter and in her reply. (Doc. 21 at 2; Doc. 28 at 33). 

However, there is no additional information or explanation to support her claim. This is 

not a sufficient showing of innocence such that the Court can review Daniels’ defaulted 

claims. 

 However, even if Daniels had raised these remaining claims to the Arizona Court 

of Appeals, this Court could still not review them because they all appear to be 

challenges to state court decisions based on state law and “it is not the province of a 

federal habeas court to reexamine state-court determinations on state-law questions. In 

conducting habeas review, a federal court is limited to deciding whether a conviction 

violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 

U.S. 62, 67-68 (1991). 

 IT IS THEREFORE RECOMMENDED that Daisy Daniels’ Second Amended 

Petition for Writ of Habeas Corpus be denied and dismissed with prejudice. 

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and 

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

is justified by a plain procedural bar and jurists of reason would not find the ruling 

debatable. 

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

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 

of Appellate Procedure, 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); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, 

the parties have fourteen days within which to file a response to the objections. Failure 

timely to file 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). 

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Failure timely to file objections to any factual determinations of the Magistrate Judge will 

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 Rule 

72, Federal Rules of Civil Procedure. 

Dated this 3rd day of August, 2016. 

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