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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Guadalupe Robles-Castro,

Petitioner,

v. 

Charles L. Ryan, et al.,

Respondents.

No. CV-16-00123-PHX-SPL (ESW)

REPORT AND 

RECOMMENDATION

TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT 

JUDGE: 

Pending before the Court is Guadalupe Robles-Castro’s (“Petitioner”) Petition 

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

Respondents have answered (Doc. 9). As Petitioner has not replied, and the time to do so 

has passed, the matter is deemed ripe for consideration. 

Petitioner raises four grounds for habeas relief in the Petition. The undersigned 

finds that Ground One does not sufficiently state a claim for habeas relief and is without 

merit. The undersigned also finds that Ground Two is without merit. Finally, the 

undersigned finds that Grounds Three and Four are procedurally defaulted and that the 

defaults should not be excused. It is therefore recommended that the Petition be denied 

and dismissed with prejudice. 

I. BACKGROUND

In February 2011, a jury sitting in the Superior Court of Arizona in and for 

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Maricopa County convicted Petitioner of (i) kidnapping, a class 2 dangerous felony; (ii) 

conspiracy to commit kidnapping, a class 2 dangerous felony; (iii) theft by extortion, a 

class 2 dangerous felony; (iv) aggravated assault, a class 3 dangerous felony; and (v) 

aggravated assault, a class 6 dangerous felony. (Doc. 1-13 at 9-10). The trial court 

sentenced Petitioner to a combined prison term of twenty years. (Doc. 1-1 at 35; Doc. 1-

13 at 14-17).

Petitioner’s appellate attorney did not find any colorable claims to raise in a direct 

appeal. (Doc. 1-8 at 33-45). In his pro se Supplemental Brief, Petitioner raised claims 

alleging judicial bias and a violation of his right to a speedy trial. (Doc. 1-1 at 11-31). 

On September 6, 2012, the Arizona Court of Appeals affirmed Petitioner’s convictions 

and sentences. (Id. at 32-45). On January 3, 2013, the Arizona Supreme Court denied 

Petitioner’s request for further review. (Doc. 1-2 at 5).

After completion of his direct appeal, Petitioner filed a Notice of Post-Conviction 

Relief (“PCR”). (Id. at 8). The trial court appointed PCR counsel, who could not find 

any colorable PCR claims. (Id. at 13-14). On July 31, 2013, Petitioner filed a pro se 

PCR Petition, which the trial court dismissed for failure to raise a colorable claim for 

relief. (Id. at 23-41, 41; Doc. 1-3 at 23). 

Petitioner filed a Petition for Review with the Arizona Court of Appeals. (Doc. 1-

3 at 26-28). On March 26, 2015, the Arizona Court of Appeals denied relief, finding that 

the Petition for Review raised issues not first presented to the trial court. (Doc. 1-4 at 1-

2). The Arizona Supreme Court denied Petitioner’s request for review on October 8, 

2015. (Id. at 5-16, 18). On January 19, 2016, Petitioner timely initiated this federal 

habeas proceeding. (Doc. 1).

II. LEGAL STANDARDS

A. Exhaustion-of-State-Remedies Doctrine

It is well-settled 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, 

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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).

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). 

Case law has clarified that in order to “exhaust” state court remedies, a 

petitioner’s federal claims must have been “fully and fairly presented” in state court. 

Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). To “fully and fairly present” a 

federal claim, a petitioner must present both (i) the operative facts and (ii) the federal 

legal theory on which his or her claim is based. This test turns on whether a petitioner 

“explicitly alerted” a state court that he or she was making a federal constitutional 

claim. Galvan v. Alaska Department of Corrections, 397 F.3d 1198, 1204–05 (9th Cir. 

2005).

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 

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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). 

As alluded to above, 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, 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 

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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.” Wood, 693 F.3d at 1117 (quoting Schlup, 513 U.S. at 327).

C. Reviewing the Merits of Habeas Claims

Federal law “unambiguously provides that a federal court may issue a writ of 

habeas corpus to a state prisoner ‘only on the ground that he is in custody in violation of 

the Constitution or laws or treaties of the United States.’” Wilson v. Corcoran, 562 U.S. 

1, 5 (2010) (per curiam) (quoting 28 U.S.C. § 2254(a)). To plead a cognizable federal 

habeas claim, a petitioner must set forth in his or her petition the facts supporting the 

specific ground upon which relief is sought. Rule 2(c), foll. 28 U.S.C. § 2254. 

“‘[N]otice’ pleading is not sufficient, for the petition is expected to state facts that point 

to a ‘real possibility of constitutional error.’” Advisory Committee Note to Rule 4, foll. 

28 U.S.C. § 2254 (citation and internal quotation marks omitted); see also Mayle v. Felix,

545 U.S. 644, 655 (2005) (noting that the rules governing pleading for Section 2254

habeas petitions are “more demanding” than the notice pleading allowed under Fed. R. 

Civ. P. 8); Wacht v. Cardwell, 604 F.2d 1245, 1247 (9th Cir. 1979) (concluding that a 

habeas petitioner “failed to satisfy the specificity requirement of § 2254 pleadings or to 

show that there is a ‘real possibility’ of constitutional error” by “merely alleg[ing] that he 

‘. . . was not informed of the consequences of his plea. . . .’”); James v. Borg, 24 F.3d 20, 

26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of 

specific facts do not warrant habeas relief.”); Greenway v. Schriro, 653 F.3d 790, 804 

(9th Cir. 2011) (“[C]ursory and vague claim[s] cannot support habeas relief.”).

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In reviewing the merits of a sufficiently pled habeas claim, the Anti-Terrorism and 

Effective Death Penalty Act of 1996 (“AEDPA”) requires federal courts to defer to the 

last reasoned state court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 

2014); Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a 

state prisoner must show that the state court’s adjudication of his or her claims 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)(1), (2); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 

132 S. Ct. 2148, 2151 (2010); Harrington v. Richter, 562 U.S. 86, 99 (2011). 

As to relief under 28 U.S.C. § 2254(d)(1), “clearly established federal law” refers 

to the holdings of the U.S. Supreme Court’s decisions applicable at the time of the 

relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Thaler v. 

Haynes, 559 U.S. 43, 47 (2010). A state court decision is “contrary to” such clearly 

established federal law if the state court (i) “applies a rule that contradicts the governing 

law set forth in [U.S. Supreme Court] cases” or (ii) “confronts a set of facts that are 

materially indistinguishable from a decision of the [U.S. Supreme Court] and 

nevertheless arrives at a result different from [U.S. Supreme Court] precedent.” Price v. 

Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 

(2000)). 

As to relief under 28 U.S.C. § 2254(d)(2), factual determinations by state courts 

are presumed correct unless the petitioner can show by clear and convincing evidence to 

the contrary. 28 U.S.C. § 2254(e)(1); see also Stanley v. Cullen, 633 F.3d 852, 859 (9th 

Cir. 2011). A state court decision “based on a factual determination will not be 

overturned on factual grounds unless objectively unreasonable in light of the evidence 

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presented in the state-court proceeding.” Davis v. Woodford, 384 F.3d 628, 638 (9th 

Cir. 2004) (as amended) (internal quotation marks and citation omitted).

III. ANALYSIS

A. Ground One: Alleged Judicial Bias

In Ground One, Petitioner alleges that “‘[j]udicial bias’ contributed to Petitioner’s 

conviction, which violated Petitioner’s right to a fair trial, and rights to due process of the 

law as guaranteed by the [Fourth, Fifth, and Fourteenth Amendments to the United States 

Constitution].” (Doc. 1 at 6). In the “Supporting Facts” section, Petitioner merely states:

(Id Feb. 04, 2010 p.8 Ln. 13-24 (and its hard for people like 

us to get people like you to understand)

(Id Feb. 04, 2010 p. 8 Ln 13-24) (so we have a difficult time 

telling people about this, and educating them on it; AND I 

CERTAINLY HOPE YOU CAN UNDERSTAND WHAT 

THEY’RE SAYING)

(Id Feb. 04, 2010 p. 8 Ln. 13-24) (if you aided and abetted 

people to commit crimes, you’re just as liable as the person 

with the gun)

(Id Feb. 24, 2011 p.11 Ln. 9-15) (so you can have this jury 

make the determination whether or not these aggravators 

exist. That is up to you. Mr. Bersky He’ll waive your Honor 

or he’ll stipulate. The Court: Is that correct, sir? RoblesCastro: Yes.)

(Id Feb 24, 2011 Sentencing) (Aggravator used is possession 

of a weapon by illegal alien) even though a gun was involved 

Robles-Castro never used it, and aggravators were turned 

over to a judge who knew this above, but still made RoblesCastros crimes dangerous even though he knew better[)]

(Doc. 1 at 6) (emphasis in original).

The undersigned finds that Petitioner allegations of judicial bias are too vague and 

conclusory to support habeas relief. See Greenway, 653 F.3d at 804; James, 24 F.3d at 

26; Wacht, 604 F.2d at 1247. However, the Court may liberally construe Ground One as 

setting forth the same judicial bias claim addressed on the merits by the Arizona Court of 

Appeals in Petitioner’s direct appeal. The Arizona Court of Appeals explained that:

[Petitioner] contends the judge presiding at the settlement 

conference, Judge Gottsfield, exhibited judicial bias by using 

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the word “hope” instead of the word “know” when describing 

[Petitioner’s] understanding of accomplice liability. 

[Petitioner] appears to claim the bias resulted in his confusion 

and therefore he did not receive proper notice regarding the 

gun, an aggravating factor, at the settlement conference. In 

an effort to address the merits of [Petitioner’s] claim, we 

review whether proper notice was provided to [Petitioner].

(Doc. 1-1 at 42). In addressing the claim, the Arizona Court of Appeals first noted that

Judge Gottsfield did not preside over Petitioner’s trial. (Id.). The court found that 

Petitioner’s notice rights were satisfied as all charges brought against Petitioner were 

contained in the indictment. (Id.). The court also observed that even though not 

required, Judge Gottsfield explained at the settlement conference “the enhanced sentence 

range of an aggravating factor to [Petitioner].” (Id. at 43; Doc. 1-8 at 53-67). Finally, the 

court stated that its “review of the entire record on appeal does not reveal evidence of 

bias or prejudice toward [Petitioner].” (Doc. 1-1 at 43). 

To succeed on a judicial bias claim, a petitioner must “overcome a presumption of 

honesty and integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35, 

47 (1975). A judge’s remarks or opinions will not demonstrate bias unless they “reveal 

such a high degree of favoritism or antagonism as to make fair judgment 

impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). The undersigned does 

not find that the Arizona Court of Appeals rejection of Petitioner’s judicial bias claim is 

contrary to, or an unreasonable application of, federal law as determined by the United

States Supreme Court. Nor does the undersigned find that the Arizona Court of Appeals’ 

rejection of the claim was based on an unreasonable determination of the facts. It is 

therefore recommended that the Court deny Ground One.

B. Ground Two: Alleged Speedy Trial Violation

In Ground Two of the Petition, Petitioner argues that the trial court denied his 

federal constitutional right to a speedy trial. (Doc. 1 at 7). “The Sixth Amendment 

guarantees that in all criminal prosecutions the accused shall enjoy the right to a 

speedy trial.” Doggett v. United States, 505 U.S. 647, 651 (1992); Barker v. Wingo, 407 

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U.S. 514, 515 (1972); United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993). 

The Supreme Court has set forth a four-factor balancing test in determining whether there 

has been a violation of the right to a speedy trial. The first factor of the analysis—the 

length of the delay—“is to some extent a triggering mechanism. Until there is some 

delay which is presumptively prejudicial, there is no necessity for inquiry into the other 

factors that go into the balance.” Barker, 407 U.S. at 530. “If the length of delay is long 

enough to be considered presumptively prejudicial, an inquiry into the other three factors 

is triggered.” United States v. Mendoza, 530 F.3d 758, 762 (9th Cir. 2008). Those 

factors include (i) the reason for the delay; (ii) whether the defendant asserted the speedy 

trial right; and (iii) whether the defendant suffered prejudice as a result of the 

delay. See Doggett, 505 U.S. at 651 (citing Barker, 407 U.S. at 530). No one factor is 

necessary or sufficient. “Rather, they are related factors and must be considered together 

with such other circumstances as may be relevant.” In other words, the “factors have no 

talismanic qualities; courts must [] engage in a difficult and sensitive balancing 

process.” Barker, 407 U.S. at 533.

Respondents do not contest Petitioner’s assertion that he fairly presented the 

speedy trial claim contained in Ground Two to the Arizona Court of Appeals on direct 

appeal. (Doc. 1 at 7; Doc. 9 at 8). The Arizona Court of Appeals correctly analyzed the 

claim by considering the Barker factors. (Doc. 1-1 at 36-41). As explained below, the 

undersigned does not find that the Arizona Court of Appeals unreasonably weighed the 

Barker factors.

1. First Factor: Length of the Delay 

Regarding the first Barker factor, the Arizona Court of Appeals found that the 

488-day (approximately sixteen months) delay was significant, but weighed only 

“slightly in favor of [Petitioner’s] position . . . .” (Doc. 1-1 at 37-38). This finding is 

not unreasonable given the circumstances of the case. Petitioner was not charged with 

“ordinary street crimes,” but with kidnapping, conspiracy to commit kidnapping, theft by 

extortion, and two counts of aggravated assault. See Barker, 407 U.S. at 531 (noting that 

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“the delay that can be tolerated for an ordinary street crime is considerably less than for a 

serious, complex conspiracy charge”); see also United States v. Tanh Huu Lam, 251 F.3d 

852, 857 (9th Cir. 2001) (finding that a 14.5 month delay in a case involving conviction 

for arson resulting in death militated “slightly” in defendant’s favor); United States v. 

King, 483 F.3d 969, 976 (9th Cir. 2007) (finding that a nearly two-year delay was not 

excessive and did not “seriously weigh” in defendant’s favor); United States v. 

Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993) (17-month and 20-month delays were not 

“great”).

2. Second Factor: Reason for the Delay

The Arizona Court of Appeals also found that the second Barker factor weighed 

only “slightly in favor” of Petitioner’s position as “[n]o evidence exists showing the 

delay was a deliberate attempt to hamper [Petitioner].” (Doc. 1-1 at 38-39). As shown in 

the following summary, many of the continuances were requested or stipulated to by 

defense counsel: 

• At Petitioner’s October 15, 2009 arraignment hearing, the trial court 

calculated March 14, 2010 to be the deadline for Petitioner’s trial.1

 (Doc. 

1-12 at 4-6).

• The minute entry from a March 22, 2010 status conference reflects that the 

State offered Petitioner a plea agreement that expired on April 27, 2010. 

(Id. at 17). The trial court set a Status Conference/Possible Change of Plea 

hearing for April 27, 2010 and stated that a trial date would be set on that 

date if the parties do not settle. (Id.). 

• At the April 27, 2010 hearing, the parties informed the court that they were 

still attempting to settle. (Id. at 19). The trial court continued the Status 

Conference/Possible Change of Plea hearing to May 11, 2010 and set June 

14, 2010 as the firm trial date. (Id.). 

• No settlement had been reached at the time of the May 11, 2010 hearing, 

and the trial court affirmed the June 14, 2010 trial date. (Id. at 21).

• The parties appeared in court on June 14, 2010. (Id. at 24). The State 

1 Arizona Rule of Criminal Procedure 8.2(a)(1) provides that a defendant in 

custody must be tried within 150 days from the date of arraignment.

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moved to continue the trial due to the State starting trial in another case. 

The court granted the State’s motion and reset the trial to August 9, 2010. 

(Id.). 

• The parties appeared in court on August 9, 2010. (Id. at 26). The court 

vacated the trial upon agreement of counsel and good cause shown for the 

reason that “[i]nterviews are still being conducted.” (Id.). The trial was 

reset to October 12, 2010. (Id.). 

• At the October 5, 2010 Final Trial Management Conference, the parties 

agreed to continue the trial to October 25, 2010. (Id. at 30).

• At an October 19, 2010 status conference, the trial court reset the trial to 

October 26, 2010. (Id. at 32).

• The parties appeared in court on October 26, 2010. (Id. at 34). Counsel for 

the State and defense stated they are currently in trial, and the State 

indicated that it intended to file a motion to consolidate Petitioner’s trial 

with a co-defendant. (Id.). The trial court vacated the trial and set a status 

conference on November 1, 2010. (Id.).

• At the November 1, 2010 status conference, defense counsel stated that he 

is ready to proceed with trial. (Id. at 36). The trial court scheduled the trial 

for December 6, 2010. (Id.).

• At a November 23, 2010 status conference, the trial court indicated that 

counsel for Petitioner’s co-defendant requested additional time to prepare 

for trial. (Id. at 41). The trial court granted the continuance and reset the 

trial to January 4, 2011. (Id. at 42).

• The parties appeared in court on January 4, 2011. (Id. at 44). Upon 

agreement of counsel, the trial court continued the matter to January 10, 

2011. (Id.).

• On January 10, 2011, the parties appeared in court, and the trial court reset 

the trial to February 14, 2011. (Id. at 46).

• At a February 8, 2011 status conference, the trial court granted defense 

counsel’s motion to continue and reset the trial to February 15, 2011. (Id.

at 51). The trial court found good cause for defense counsel’s motion on 

that the ground that the parties were attempting to settle. (Id.).

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• At a February 14, 2011 status conference, counsel for the State and defense 

stated they are ready to proceed with trial. (Id. at 53). The trial court 

affirmed the February 15, 2011 trial date. (Id.).

• Trial commenced on February 15, 2011. (Id. at 57).

As shown above, several of the continuances were requested because the parties 

were attempting to negotiate a settlement. The record reflects that Petitioner was present 

at all of the hearings and there is no evidence that Petitioner objected to any of the 

continuances. See United States v. Shetty, 130 F.3d 1324, 1330-31 (9th Cir. 

1997) (finding delay attributable to defendant where neither defense counsel nor 

defendant objected to any of the continuances granted and instead stipulated to most of 

the continuances); McNeely v. Blanas, 336 F.3d 822, 827 (9th Cir. 2003)

(“[D]elay attributable to the defendant’s own acts or to tactical decisions by defense 

counsel will not bolster defendant’s speedy trial argument.”); United States v. 

Aguirre, 994 F.2d 1454, 1457 (9th Cir. 1993) (“The Speedy Trial Clause primarily 

protects those who assert their rights, not those who acquiesce in the delay.”). The 

undersigned does not find that the Arizona Court of Appeals unreasonably weighed the 

second Barker factor.

3. Third Factor: Whether the Defendant Asserted the Speedy Trial 

Right

The Arizona Court of Appeals found that the third Barker factor weighed against a 

speedy trial violation, finding that Petitioner failed to assert his speedy trial right until his 

appeal. (Doc. 1-1 at 39). To reiterate, the record reflects that Petitioner was present for 

every grant of continuance and Petitioner has not produced evidence that he objected to 

any of the continuances or moved to substitute counsel when his counsel stipulated to the 

continuances. In fact, as the Arizona Court of Appeals’ decision notes, the record 

indicates that on October 5, 2010, Petitioner “waived the applicable time limits.” (Id. at 

38; Doc. 1-12 at 30). The undersigned concludes that the Arizona Court of Appeals did 

not unreasonably weigh the third Barker factor. See Barker, 407 U.S. at 532 (“[F]ailure 

to assert the right will make it difficult for a [petitioner] to prove that he was denied 

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a speedy trial.”); United States v. Lam, 251 F.3d 852, 857-58 (9th Cir.

2001), amended, 262 F.3d 1033 (9th Cir. 2001) (attributing responsibility for delay in 

trial to a petitioner’s counsel and also finding that “such responsibility rightfully accrues 

to [the petitioner]”) (citing United States v. Guerra de Aguilera, 600 F.2d 752, 753 (9th

Cir. 1979) (“Litigants are generally bound by the conduct of their attorneys, absent 

egregious circumstances.”).

4. Fourth Factor: Prejudice Caused by the Delay

Regarding the last Barker factor, the Arizona Court of Appeals did not find 

persuasive Petitioner’s claim that the delay in his trial limited his recollection of the facts 

and his ability to remember and locate witnesses, stating that Petitioner “does not 

pinpoint any specific aspect of the indictment where his memory failed or any particular 

witness he was unable to locate for trial.” (Doc. 1-1 at 40). 

Petitioner’s brief on direct appeal makes only vague and conclusory statements in 

support of his claim that his defense was prejudiced by the delayed trial.2

 (Doc. 1-1 at 

24-27). The record does not contain evidence suggesting that Petitioner was prejudiced 

by the trial continuances. The undersigned does not find that the Arizona Court of 

Appeals unreasonably weighed the last Barker factor. See Lam, 251 F.3d at 860 (stating 

that a defendant’s “contentions regarding alleged defects in witness testimony or lost 

evidence amount at most to speculation and fail to demonstrate any actual prejudice to his 

defense”); King, 483 F.3d at 977 (a defendant cannot rely solely on the mere “passage of 

time” to show prejudice). 

For the above reasons, the undersigned does not find that the Arizona Court of 

Appeals’ decision rejecting Petitioner’s speedy trial claim was contrary to, or was based 

on an unreasonable application of clearly established federal law; nor was it an 

unreasonable determination of the facts in light of the evidence presented. The 

undersigned recommends that the Court deny Ground Two.

 

2 Ground Two of the Petition likewise only makes vague and conclusory assertions that he was prejudiced by the delay. (Doc. 1 at 7).

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C. Grounds Three and Four: Alleged Ineffective Assistance of Trial and 

Appellate Counsel

1. Grounds Three and Four are Procedurally Defaulted

As detailed in the Court’s screening order, Ground Three of the Petition “contends 

that [Petitioner’s] right to effective assistance of counsel was violated by his trial

attorney’s failure to conduct investigation into or file a suppression motion based on a

‘blatant [Miranda v. Arizona, 384 U.S. 436 (1966)] violation.’” (Doc. 5 at 2; Doc. 1 at 

8). 

In Ground Four, Petitioner alleges that his appellate counsel was ineffective for 

failing to advise Petitioner of his “right to appeal . . . trial counsel’s ineffectiveness [by] 

not filing a motion to suppress as to the Miranda violation.” (Doc. 1 at 9). 

Petitioner presented the claims contained in Grounds Three and Four in his PCR 

Petition filed with the trial court. (Doc. 1-2 at 24-25). However, as the Arizona Court of 

Appeals’ March 26, 2015 decision correctly explains, Petitioner did not present the 

claims in his Petition for Review filed with the Arizona Court of Appeals. (Doc. 1-4 at 2; 

Doc. 1-3 at 26-28). Rather, “[i]n his petition for review, [Petitioner] argues for the first 

time that the officer’s explanation of his Miranda rights was legally insufficient and 

presents claims of ineffective assistance of counsel based on the alleged insufficiency.” 

(Doc. 1-4 at 2). 

“[T]o exhaust a habeas claim, a petitioner must properly raise it on every level of 

direct review.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004). “[C]laims of 

Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona 

Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 

1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Arizona Rule of Criminal 

Procedure 32.9(c)(1)(iv) requires a petitioner to “present the issues and material facts 

supporting a claim in a petition for review and prohibits raising an issue through 

incorporation of any document by reference, except for appendices.” Wood v. Ryan, 693 

F.3d 1104, 1117 (9th Cir. 2012) (citing Ariz. R. Crim. P. 32.9(c)(1)(iv)).

Because Petitioner failed to present the claims contained in Grounds Three and 

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Four to the Arizona Court of Appeals in his Petition for Review, Grounds Three and Four 

are unexhausted. See Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2004) (“To 

exhaust his claim, Castillo must have presented his federal, constitutional issue before 

the Arizona Court of Appeals within the four corners of his appellate briefing.”); 

Coleman, 501 U.S. at 732 (the failure “to meet the State’s procedural requirements for 

presenting his federal claims has deprived the state courts of an opportunity to address 

those claims in the first instance”); see also Baldwin v. Reese, 541 U.S. 27, 32 (2004) 

(“[O]rdinarily a state prisoner does not ‘fairly present’ a claim to a state court if that court 

must read beyond a petition or a brief (or a similar document) that does not alert it to the 

presence of a federal claim in order to find material, such as a lower court opinion in the 

case, that does so.”). 

Further, the adequate and independent state procedural rules contained in Arizona 

Rules of Criminal Procedure 32.2(a) and 32.4(a) would preclude Petitioner from 

returning to state court to exhaust Grounds Three and Four.

3 The undersigned therefore 

finds that Grounds Three and Four are procedurally defaulted. See Beaty v. Stewart, 303 

F.3d 975, 987 (9th Cir. 2002) (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)). 

2. 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). 

 

3 Although the Arizona Rules of Criminal Procedure do not bar untimely or waived claims that fall within the category of claims contained in Arizona Rule of

Criminal Procedure 32.1(d) through (h), Petitioner has not asserted that any of those 

exceptions apply to him and the undersigned does not find that any of the exceptions would apply.

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Petitioner’s status as a pro se litigant does not constitute “cause.” See Hughes v. 

Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (cause not 

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

who was released); 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). Petitioner has failed to show cause for his procedural default. 

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.

To satisfy the fundamental miscarriage of justice exception, Petitioner must show 

that “a constitutional violation has resulted in the conviction of one who is actually 

innocent.” Schlup, 513 U.S. at 327. 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. Wood, 693 F.3d at 1117. 

As the undersigned does not find that Petitioner’s procedural defaults should be 

excused, it is recommended that the Court dismiss Grounds Three and Four. 

IV. CONCLUSION

Based on the foregoing, 

IT IS RECOMMENDED that the Court deny and dismiss the Petition (Doc. 1) 

with prejudice.

IT IS FURTHER RECOMMENDED that a certificate of appealability and leave

to proceed in forma pauperis on appeal be denied because the undersigned does not find 

that jurists of reason would find it debatable that (i) Petitioner has not made a substantial 

showing of the denial of a constitutional right as to Grounds One and Two and (ii) the 

dismissal of Grounds Three and Four is justified by a plain procedural bar.

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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. 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 United States v. Reyna-Tapia, 328 F.3d 

1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). 

Dated this 31st day of January, 2017. 

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