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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Paul Mark Mosakowski, 

Petitioner, 

v. 

Charles L. Ryan, Attorney General of the 

State of Arizona, 

Respondents.

No. CV 15-02010-PHX-GMS (DMF)

REPORT AND 

RECOMMENDATION 

TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT 

JUDGE: 

 Petitioner Paul Mark Mosakowski (“Petitioner” or “Mosakowski”), who is 

confined in the Arizona State Prison Complex-Douglas, filed a pro se Petition for Writ of 

Habeas Corpus (“Petition”) on October 7, 2015 (Doc. 1). Petitioner was convicted in the 

Maricopa County Superior Court, case #’s 2011-139097, 2012-009010, 2012-009011, 

and 2012-009012, of robbery and was sentenced to a 20-year aggregate term of 

imprisonment followed by probation. Petitioner names Charles L. Ryan as Respondent 

and the Arizona Attorney General as an Additional Respondent. On October 19, 2015, 

this Court ordered Respondents to answer the Petition, allowing a limited answer (Doc. 

4). Respondents filed a limited answer (Doc. 14), and Petitioner filed a reply (Doc. 15). 

As explained below, the Court recommends that the Petition be denied and dismissed 

with prejudice. 

/ / / 

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I. BACKGROUND 

A. Proceedings Leading to Convictions and Sentences 

Petitioner was charged in four cases with twenty five separate robberies, many of 

which involved Petitioner’s use of a real or toy gun and were charged as armed robberies 

(Exhibit P; Doc. 14-1 at p. 87-99)1

.

2

 At an on the record settlement conference (Exhibit 

U; Doc. 14-1 at p. 145-171), the judge cautioned Petitioner that if he went to trial and 

lost, there was a significant risk of consecutive incarceration sentences so numerous and 

long that he could spend the rest of his life in prison (Exhibit U; Doc. 14-1 at p. 149-153). 

The judge said, “I have to explain to you the good and the bad. I have to explain to you 

all the possibilities and all the [parameters] and so unfortunately that could be, you know, 

a life sentence basically if everything gets stacked” (Exhibit U; Doc. 14-1 at p. 153). 

At the settlement conference, Petitioner brought to the judge and counsel’s 

attention his early confessions to and cooperation with law enforcement. The judge 

discussed with counsel following up with the detective about whether or not the detective 

had promised concurrent sentences in exchange for Petitioner’s admissions (Exhibit U; 

Doc. 14-1 at p. 145-171), but the judge also made clear that “at the end of the day, the 

County Attorney” has the power to determine the charges and any plea offer, not the 

detective (Exhibit U; Doc. 14-1 at p. 152). “So the detective or sergeant doesn’t have the 

authority [to promise consecutive time, the prosecutors] do” (Id.). This was echoed by 

defense counsel (Id.). Petitioner also said about his confession and cooperation, “I think 

a lot of it was to get it off my mind because I’m not like that” (Exhibit U; Doc. 14-1 at p. 

165-166). 

After the settlement conference, Petitioner accepted plea agreements covering the 

four cases (Exhibits J, K, L, M; Doc. 14-1 at p. 44-48, p. 49-53, p. 54-59, p. 60-64). In 

 

1

 The referenced alphabetical exhibits were submitted with Respondents’ Limited Answer, Doc. 14. The document and page references herein are to this Court’s electronic 

record. 

2

 In Arizona, the factual basis for a no-contest plea may be ascertained from the record including presentence reports, preliminary hearing reports, admissions of the defendant, and from other sources. State v. McVay, 641 P.2d 857, 861 (Ariz. 1982). 

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case # CR2012-009010, the stipulated sentences regarding counts one and three stated 

that the sentences of not less than 10 years but not more than 12, 5 years would “run 

consecutively to each other for a term of not less than 20 years but not more than 25 

years” and, likewise, for case # CR2012-009011, the stipulated sentences regarding 

counts one and two stated that the sentences of not less than 10 years but not more than 

12, 5 years would “run consecutively to each other for a term of not less than 20 years but 

not more than 25 years” (Exhibit K, L; Doc. 14-1 at p. 50, p. 55). 

At the change of plea hearing (consolidating all four cases) and before Petitioner 

plead guilty, the court summarized that with the various consecutive and concurrent 

sentences Petitioner was receiving under the combined plea agreements, he would be 

“going to go to prison between 20 and 25 years” and would be on probation on several 

charges upon his release from incarceration (Exhibit V; Doc. 14-2 at p. 21). Again, the 

Court summarized, “Some [sentences] run concurrently, some run consecutively, but it’s 

a total of 20 to 25 years in prison followed by a supervised probation. Is that your 

understanding of all of these pleas, sir” (Id.) Petitioner replied, “Yes, your honor” (Id.) 

Also before any guilty pleas at the change of plea hearing, the court asked if 

Petitioner had read each of the plea agreements thoroughly and “agree[d] with the 

contents of all four plea agreements?” to which Petitioner answered “Yes, Your Honor” 

(Exhibit V; Doc. 14-2 at p. 11-12). Petitioner also answered that the plea agreements 

contained his entire agreements with the state, that he was not coerced or threatened into 

pleading guilty, and he was not made promises beyond those in the plea agreement 

(Exhibit V; Doc. 14-2 at p. 13). The Court accepted the plea agreements (Exhibits C, D, 

E, F; Doc. 14-1 at p. 9-11, p. 12-15, p. 16-19, p. 20-23). 

Between the change of plea and sentencing on the plea agreements, Petitioner, 

through counsel, moved to withdraw from the plea agreements, claiming they were 

unduly harsh, that he would like to negotiate a more lenient offer, and that Petitioner’s 

mother passed away which changed the way Petitioner felt about the plea offer (Exhibit 

N; Doc. 14-1 at p. 65-77). The motion to withdraw was opposed and denied (Exhibits O, 

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Q, R, S, T, W; Doc. 14-1 at p. 78-85, p. 115-121, p. 122-129, p. 130-137, p. 138-144, 

Doc. 14-2 at p. 45-46). 

Pursuant to the plea agreements, Petitioner was sentenced to an aggregated total of 

twenty years incarceration (after taking concurrent sentences into account) as well as 

probation to follow the incarceration; in addition, seven charges were dismissed (Doc. 1 

at p. 2; Q, R, S, T, W; Doc. 14-1 at p. 115-121, p. 122-129, p. 130-137, p. 138-144, Doc. 

14-2 at p. 43-76).3

 The sentence imposed was the lowest possible imprisonment under 

the plea agreements (Exhibits J, K, L, M; Doc. 14-1 at p. 44-48, p. 49-53, p. 54-59, p. 60-

64). 

B. PCR Proceedings 

 1. First PCR Proceedings

On April 26, 2013, Petitioner filed a timely notice of post-conviction relief 

(“PCR”) (Ex. X; Doc. 14-2 at p. 77-81). Petitioner filed a notice to amend his PCR 

notice to include all four of his case numbers, which was granted (Exhibits Y, AA; Doc. 

14-2 at p. 82-108, p. 112-114). Because Petitioner also sought to represent himself in 

PCR proceedings, the Office of the Legal Advocate filed a motion to determine counsel 

(Exhibits Y, Z; Doc. 14-2 at p. 82-108, p. 109-111). The court denied Petitioner’s 

request to represent himself and appointed the Office of the Legal Advocate to represent 

Petitioner (Ex. AA; Doc. 14-2 at p. 112-114). 

On July 23, 2014, the Office of the Legal Advocate filed a notice of completion of 

post-conviction review stating that after reviewing the materials in the case, counsel was 

“unable to raise any issues on behalf of [Petitioner] in post-conviction relief proceedings” 

(Exhibit BB; Doc. 14-2 at p. 115-118). The court ordered counsel to send case materials 

to Petitioner, and set a deadline for Petitioner to file a pro se PCR petition (Exhibit.CC; 

Doc. 14-2 at p. 119-123). 

On September 8, 2014, Petitioner filed a timely pro se PCR petition supported by 

his own affidavit and the transcript of the settlement conference (Exhibits DD, EE; Doc. 

 

3

 There were also monetary penalties, such as restitution (Id.). 

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14-2 at p. 124-168, p. 169-174). Citing Strickland v. Washington, 466 U.S. 668 (1984), 

and Missouri v. Frye, 132 S. Ct. 1399 (2012), Petitioner claimed that his counsel had 

been ineffective for failing to investigate “the relevant facts surrounding [Petitioner’s] 

allegation of promised leniency” by the detective and asserted that “there is a reasonable 

likelihood that the outcome of [Petitioner’s] sentencing and plea negotiation process 

would have been different if [defense counsel] had investigated [Petitioner’s] claim” that 

the police “promised concurrent sentences in all cause numbers in exchange for his 

admissions of guilt” (Id.). 

The state responded in opposition and Petitioner replied (Exhibits FF, GG; Doc. 

14-2 at p. 175-189, p. 190-195). On January 6, 2015, the court denied relief (Exhibit HH; 

Doc. 14-2 at p. 196-199). The court noted that the record did “not show there was ever 

promise of leniency in the form of concurrent sentences by the detective who interviewed 

Petitioner” (Exhibit HH; Doc. 14-2 at p. 198). While the trial court ruled that the issue 

was waived by Petitioner in his guilty plea, the trial court addressed the ineffective 

assistance of counsel claim substantively: 

Petitioner has failed to show ineffective assistance of counsel pursuant to 

Strickland. Petitioner raised the issue regarding his discussions about his 

cases with the detective in the settlement conference. The prosecutor 

acknowledged that he was unaware of any discussions. However, even 

upon hearing about it during the settlement conference, the prosecutor did 

not change the offer. His intent was for [Petitioner] to serve 20-25 years in 

prison followed by probation for the approximately twenty-eight felonies 

he was charged within four cases. Petitioner’s attorney was not ineffective. 

Moreover, case law is clear that “... to state a colorable claim, the 

allegation that a petitioner would not have pleaded guilty but for counsel’s 

deficient performance must be accompanied by an allegation of specific 

facts which would allow a court to meaningfully assess why that deficiency 

was material to the plea decision.” Here there has been [no] such showing, 

and the record is clear that Petitioner was facing decades longer in prison 

had he rejected the plea. 

The Court also notes that in his Motion to Withdraw from Plea Agreement 

dated February 26, 2013 Petitioner did not argue that he was to receive 

concurrent sentences based on some alleged discussions with the detective. 

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Rather, he cites that he believed the plea was too harsh and that his mother 

had passed away while he was awaiting sentencing and that changed his 

view of the plea offer. Neither of these arguments rose to a finding of 

manifest injustice, and the Court denied his motion. Although ineffective 

assistance of counsel could not be raised at that time, he failed to argue that 

he believed he should receive concurrent sentences based on alleged 

discussions with the detective. 

Finally, a review of the record reveals that the defendant knowingly, 

intelligently and voluntarily entered the plea agreements in these four cases. 

During the plea colloquy Petitioner acknowledged that he discussed the 

terms of the pleas with his attorney, his attorney answered all his questions 

about the pleas, and that pleading guilty in each case was what he chose to 

do. [The incarceration sentence under the plea agreements called for] a total 

range of 20-25 years in prison, and these terms were covered with 

Petitioner prior to the entry of the pleas. 

(Exhibit HH; Doc. 14-2 at p. 198-199) (citations omitted). 

 Petitioner did not file a petition for review with the Arizona Court of Appeals 

(Doc. 1 at p. 5). 

 2. Second PCR Proceedings 

On April 13, 2015, Petitioner wrote a letter to the court requesting concurrent 

sentences (Exhibit II; Doc. 14-2 at p. 200-208). After reiterating his account of the 

detective promises as he had in the first PCR proceeding, Petitioner claimed that when he 

told his attorney he was not comfortable signing the plea agreements, “[h]e responding by 

saying ‘Just sign it and when you get to a facility, file a rule 32 (post conviction relief) 

motion to have all the charges run concurrent and I guarantee you the court will grant it” 

(Exhibit II; Doc. 14-2 at p. 207). 

The court treated the letter as a successive PCR petition, and dismissed it (Ex. JJ; 

Doc. 14-2 at p. 209-212). The court held that Petitioner could not raise ineffective 

assistance of counsel or other constitutional claims “because an untimely or successive 

notice may only raise claims pursuant to Rule 32.1(d), (e), (f), or (h). See Ariz. R. Crim. 

P. 32.4(a). The Rule 32.1(a) claims [Petitioner] has asserted were required to be raised in 

a timely Notice of Post-Conviction Relief. See id.” (Ex. JJ; Doc. 14-2 at p. 211). 

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Petitioner did petition the Arizona Court of Appeals for review of the trial court’s 

denial and dismissal of his second PCR proceedings (Doc. 1 at p. 5). 

II. PETITIONER’S HABEAS CLAIMS 

In his Petition, Petitioner names Charles L. Ryan as Respondent and the Arizona 

Attorney General as an Additional Respondent. Petitioner raises three grounds for relief. 

In Ground One, Petitioner alleges that the charges against him and the indictment 

violated the Fifth Amendment and the double jeopardy clause because they were 

multiplicitous. In Ground Two, Petitioner alleges that his due process rights were 

violated because was subjected to prosecutorial misconduct when “promises” that were 

made to him by the police department were not kept and were not disclosed to the judge. 

In Ground Three, Petitioner alleges that his Sixth Amendment rights were violated 

because he received ineffective assistance of counsel when his counsel misadvised him 

about his plea. 

III. LEGAL ANALYIS 

A. Exhaustion/Procedural Bar 

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). 

Petitioner was convicted and sentenced pursuant to a plea agreement. Therefore, his 

avenue of review in the Arizona courts was through a “Rule 32 of right proceeding,” 

rather than through a direct appeal. See Ariz. R. Crim. P. 32.1. Whether the conviction is 

from a guilty plea or a trial result, 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).4

 

 

4

 “To exhaust one’s state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his or her conviction in a petition for post-conviction relief pursuant to Rule 32[,]” Roettgen v. Copeland, 33 F.3d 36, 38 (9th 

Cir. 1994), and then present his claims to the Arizona Court of Appeals. See Castillo v. 

McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2005). 

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

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. 

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). 

In Arizona, claims that have not been previously presented to the state courts, 

through either direct appeal or collateral review, are generally barred from federal review 

because an attempt to return to state court to present them is futile unless the claims fit in 

a narrow category of claims for which a successive petition for post-conviction relief is 

permitted. See Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a) & (b) (stating successive petitions 

are limited to claims of being held in custody beyond sentence expiration, newlydiscovered material facts, requests for delayed appeal, significant change in the law 

retroactively applicable that would probably overturn conviction or sentence, and actual 

innocence); Spreitz v. Ryan, 617 F. Supp. 2d 887, 899–900 (D. Ariz. 2009) (describing 

Arizona’s preclusion rule). 

In addition to preclusion under Rule 32.2, Arizona has a time bar requiring that a 

notice of post-conviction relief, in a non-capital case, be filed within 90 days after the 

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entry of judgment and sentence or within 30 days “after the issuance of the final order 

and mandate in the direct appeal, whichever is the later.” See Ariz. R. Crim. P. 32.4(a); 

Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (recognizing the untimeliness bar 

under Rule 32.4(a) as a basis for dismissing an Arizona petition for post-conviction relief, 

distinct from preclusion under Rule 32.2(a)). As with the preclusion bar, an untimely 

notice post-conviction relief is only permitted for a narrow category of claims—the same 

narrow category of claims that are exempted from the preclusion bar. See Ariz. R. Crim. 

P. 32.1(d)–(h), 32.4(a). If a claim is filed outside time limits or does not fall within one 

of the exceptions in Rule 32, the successive notice is subject to summary dismissal. See, 

e.g., State v. Diaz, 269 P.3d 717, 719–21 (App. 2012); State v. Rosario, 987 P.2d 226, 

228 (App. 1999); State v. Jones, 897 P.2d 734, 735–36 (App. 1995). 

Because Arizona’s preclusion rule (Rule 32.2) and time-bar rule (Rule 32.4) are 

both “independent” (it does not rely upon a federal constitutional ruling on the merits, 

Stewart v. Smith, 536 U.S. 856, 860 (2002)) and “adequate” (it is strictly or regularly 

followed, Johnson v. Mississippi, 486 U.S. 578, 587 (1988)), when specifically applied to 

a claim by an Arizona court or when precluding a return to state court to exhaust a claim, 

they procedurally bar subsequent review of the merits of that claim by a federal habeas 

court. See Stewart v. Smith, 536 U.S. 856, 860 (2002) (finding determinations made 

under Arizona’s procedural default rule are “independent” of federal law); Beaty v. 

Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (finding that unexhausted claims were 

procedurally defaulted because petitioner was “now time-barred under Arizona law from 

going back to state court”); Ortiz v. Stewart, 149 F.3d 923, 931–32 (9th Cir. 1998) 

(rejecting the argument that Arizona courts have not “strictly or regularly followed” Rule 

32); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (en banc) (rejecting the 

assertion that Arizona courts’ application of procedural default rules had been 

“unpredictable and irregular”); State v. Mata, 916 P.2d 1035, 1050–52 (Ariz. 1996) 

(noting that waiver and preclusion rules are strictly applied in post-conviction 

proceedings). 

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

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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). 

1. All grounds of the Petition are unexhausted and procedurally 

defaulted. 

Petitioner did not timely or properly present his claims in Petitions grounds 1 and 

2 to any Arizona court.5 Regarding ground 3, a similar ground was raised in Petitioner’s 

first and timely PCR petition, but review of the denial of the PCR petition was not sought 

at the Arizona Court of Appeals. It is too late and now improper under Arizona law to 

raise any of the Petition grounds at any level in the Arizona courts. All of Petitioner’s 

claims are therefore unexhausted and defaulted because of a procedural bar. 

Procedural defaults are excusable only if the petitioner demonstrates either (1) 

cause for the defaults and prejudice resulting from them, or (2) a fundamental miscarriage 

of justice by showing that he is actually innocent. Coleman, 501 U.S. at 750; Cooper v. 

Neven, 641 F.3d 322, 327 (9th Cir. 2011). As discussed below, Petitioner cannot make 

either showing. Consequently, his claims are inexcusably defaulted and should be 

dismissed with prejudice. 

2. Petitioner does not present an excuse for his defaults under the 

cause-and-prejudice framework. 

The first way a petitioner may excuse a default is to show cause and prejudice. 

This test is “conjunctive”; a petitioner must show both cause and prejudice to excuse a 

default. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982). To establish “cause,” a petitioner 

must demonstrate that “some objective factor external to the defense impeded 

[petitioner]’s efforts to comply with the State’s procedural rules.” Coleman, 501 U.S. at 

753 (internal quotation marks omitted). To show “prejudice,” a petitioner must 

 

5

 Even if the Court were to construe ground 2 as having been raised as part of the first PCR petition, this ground would be unexhausted nevertheless because review was 

not sought at the Arizona Court of Appeals of the denial of the first PCR petition. 

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demonstrate that the underlying alleged constitutional violation worked to the prisoner’s 

“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 Stokley v. Ryan, 

705 F.3d 401, 403 (9th Cir. 2012). 

Petitioner has not met his burden of demonstrating, cause and prejudice. 

Petitioner has not identified any “objective factor external to the defense” that prevented 

him from presenting his claims to the state courts. Coleman, 501 U.S. at 753.6

 Petitioner 

asserts that he did not present ground one to the Arizona courts because he “signed a plea 

deal” (Doc. 1 at p. 6), but the plea agreement did not preclude Petitioner from raising this 

ground in his first and timely PCR petition. See Ariz. R. Crim. P. 32.1(a). 

As Petitioner’s reason that he did not present grounds two and three to the Arizona 

Court of Appeals, Petitioner asserts the following as the reason: “newly discovered 

evidence” in the form of the “audio cd” (Doc. 1 at p. 7- 8). For newly discovered 

evidence to excuse a procedural default, Petitioner would need to demonstrate not only 

that the evidence is new and could not have been discovered with the exercise of due 

diligence, but that Petitioner is actually innocent. 

3. Petitioner does not present new evidence or show that he is actually 

innocent. 

The miscarriage of justice exception to procedural default “is limited to those 

extraordinary cases where the petitioner asserts his [actual] innocence and establishes 

that the court cannot have confidence in the contrary finding of guilt.” Johnson v. 

Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original); Schlup v. Delo, 513 

U.S. 298, 327 (1995). To pass through the actual innocence/Schlup gateway, a petitioner 

must establish his or her factual innocence of the crime and not mere legal insufficiency. 

See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882–

 

6

 Petitioner has not asserted that Martinez v. Ryan, 132 S. Ct. 1309 (2012), is an 

avenue for excuse of the procedural default, nor can he does so persuasively. The ineffective assistance of counsel claim was presented to the trial court in the first PCR 

proceeding, the trial court applied the Strickland standard to the claim, and in a wellreasoned decision found the ineffective assistance of counsel claim lacked merit. 

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83 (9th Cir. 2003). To prove a “fundamental miscarriage of justice,” a prisoner must 

establish that, in light of new evidence, “it is more likely than not that no reasonable juror 

would have convicted him.” Schlup v. Delo, 513 U.S. 298, 327 (1995). This standard “is 

demanding and permits review only in the extraordinary case,” House v. Bell, 547 U.S. 

518, 538 (2006) (internal quotation marks omitted), and requires the petitioner to present 

“new reliable evidence—whether it be exculpatory scientific evidence, trustworthy 

eyewitness accounts, or critical physical evidence—that was not presented at trial,” 

Schlup, 513 U.S. at 324 (emphasis added); accord Lee v. Lampert, 653 F.3d 929, 938 (9th 

Cir. 2011). 

Petitioner has not even asserted his innocence, nor has he presented any new 

evidence here, much less evidence so powerful “that no reasonable juror would have 

convicted him.” Schlup, 513 U.S. at 327. This evidence, even if it were “new”, does not 

show Schlup actual innocence; rather, the evidence is a recording which includes multiple 

confessions by Petitioner to the crimes of conviction and other crimes. Further, 

Petitioner asserts that his trial counsel gave ineffective advice “concerning [Petitioner’s] 

plea knowing that the audio cd was real and is an epic violation of my Sixth Amendment” 

rights (Doc. 1 at p. 8). Thus, Petitioner points out that the audio cd existed at the time of 

his underlying case and, thus, is not new evidence. 

4. The Petition is Unexhausted and Procedurally Barred Without 

Excuse 

Petitioner did not exhaust any of the claims in his habeas petition and procedural 

bars now exist to prevent him from doing so. To meet the exhaustion requirement, 

Petitioner needed to fairly present his claims to the Arizona Court of Appeals by 

providing the facts underlying his claim and the federal basis of those claims. Petitioner 

did not do so and, therefore, his claims are not exhausted. In addition, Petitioner’s claims 

are now subject to procedural bars because his claims were not fairly presented in state 

court and no state remedies remain available to him. Petitioner has not demonstrated 

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

justice. Accordingly, the Petition should be dismissed with prejudice. 

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IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas 

Corpus (Doc. 1) be denied and dismissed with prejudice. 

IT IS FURTHER RECOMMENDED that a Certificate of Appealability 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). 

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 9th day of January, 2017. 

Honorable Deborah M. Fine

United States Magistrate Judge

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