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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Kendall La Shonne White,

Petitioner

-vsCharles L. Ryan, et al.,

Respondents.

CV-15-2482-PHX-JJT (JFM)

Report & Recommendation 

on Petition for Writ of Habeas Corpus

I. MATTER UNDER CONSIDERATION

Petitioner, presently incarcerated in the Arizona State Prison Complex at 

Buckeye, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 

2254 on December 7, 2015 (Doc. 1). On January 26, 2016, Respondents filed their 

Response (Doc. 7). Petitioner has not replied.

The Petitioner's Petition is now ripe for consideration. Accordingly, the 

undersigned makes the following proposed findings of fact, report, and recommendation 

pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules 

of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil 

Procedure. 

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND AND PROCEEDINGS AT TRIAL

On February 13, 2012, Petitioner was indicted on one count of Aggravated 

Assault and one count of Disorderly Conduct, both designated as dangerous offenses and 

domestic violence offenses. (Exhibit A, Indictment.) (Exhibits to the Answer, Doc. 7,

are referenced herein as “Exhibit ___.”) The charges stemmed out of an altercation 

between Petitioner and his wife.

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On March 5, 2013, the parties appeared for a hearing on the defense’s motion to 

preclude expert testimony. (Exhibit E, R.T. 3/5/13.) After advising the court of 

problems in obtaining compliance by witnesses (Petitioner’s wife and daughter) with 

subpoenas for depositions, defense counsel reported that the prosecution had re-extended 

a plea offer with the stipulation that Petitioner was obligated to accept immediately, 

without being able to interview the recalcitrant witnesses. (Id. at 1-8.) The prosecutor 

confirmed that the plea offer was based upon it being accepted prior to the witness 

depositions, with recognition that the results of the deposition could improve or worsen 

the state’s position. Defense counsel reported that the parties had been through two 

settlement conferences, but the separate probation violation had not been directly 

addressed. The prosecutor agreed to make the separate probation violation concurrent if 

the offer were accepted “in the next five minutes.” (Id. at 8-11.) The court recessed to 

permit counsel to confer with Petitioner, and upon returning Petitioner addressed the 

Court and expressed that his wife had recanted her allegations against him, and then 

asked about alternatives:

THE DEFENDANT: Can we do the interview first 

before I make a decision? 

THE COURT: It's not up to me. It's up to the State, 

and I assume the answer is still no. 

Is that right, Mr. Rademacher? 

MR. RADEMACHER [the prosecutor]: Yes, Your 

Honor. 

THE DEFENDANT: If I decide to sign the plea can 

we do something better than this? 

MR. RADEMACHER: No. 

May I, Judge? 

The plea is not changing. It's not going to get better. Your 

wife told police it was you. Your wife told her doctor it was you. 

We have recorded statements. We have her medical records. All of 

that's coming in at trial. So if she gets up here and said it wasn't you, 

that's why we have the expert sitting outside right now who will 

testify why we believe she is lying and why she is playing these 

games. So this is what DV cases are about. So it's up to you, man.

(Id. at 12-13.) After conferring with Petitioner, defense counsel reported that Petitioner 

wished to proceed with the plea offer. The court asked the deputy to move Petitioner to a 

table to sign, and then recessed. (Id. at 14.)

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Petitioner then signed the written Plea Agreement (Exhibit B), wherein Petitioner 

agreed to plead guilty to the aggravated assault charge and an amended charge of 

disorderly conduct. The only stipulations to sentencing were a prison term on the 

aggravated assault (count 1), consecutive supervised probation on the disorderly conduct 

(count 2), and that any prison term on a probation violation on another case would run 

concurrent. In addition, the state agreed to dismiss any allegation of prior felony 

convictions and being on probation.

The court confirmed that Petitioner had read the plea agreement and had signed 

and initialed it, and had reviewed with his attorney, had his questions answered, and 

understood it. (Id. at 15-17.) With regard to agreement the court reviewed:

THE COURT: Sir, let's take a look at the plea 

agreement. It tells me you will plead guilty to Count 1, aggravated 

assault, a class 3 dangerous felony and domestic violence offense 

committed September 19, 2011. That's Count 1. 

And Count 2, as amended, disorderly conduct, a class 

6 non-dangerous designated felony and domestic violence offense 

committed on the same date. 

So Count 1 is dangerous. Count 2 is non-dangerous. 

Both are nonrepetitive. 

The State -- and I'm looking now at paragraph 2. As to 

Count 1 you will be sentenced to the Department of Corrections. 

And it does not say how long. That will be up to the Court.

And Count 2 you will be put on probation upon your 

physical release. 

You are to have no victim contact unless approved in 

writing by the probation department, pay restitution in an amount 

not to exceed $100,000. 

And then your probation violation in 2007, whatever 

sentence you got in that ca se would run concurrently with your 

sentence in this case. 

And then the State's going to dismiss some sentencing 

enhancement allegations against you as well. 

Is that the agreement that you have with the State, sir? 

THE DEFENDANT: Yes, sir. 

THE COURT: All right. Now, concerning Count 1, 

the presumptive sentence is 7-1/2. The minimum is 5. Maximum is 

15. And probation is not available.

* * * 

So, sir, what I have just reviewed with you is the 

possible range of penalty and sentence for the two offenses that 

you're pleading guilty to. Do you understand the possible range of 

penalty and sentence? 

THE DEFENDANT: Yes, sir.

(Id. at 17-19.) Petitioner proceeded to plead guilty.

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Petitioner subsequently filed a series of motions (Exhibits F, G, H and I) 

attempting to withdraw from his plea and plea agreement, arguing mental impairment 

(including a history of mental illness and failure to take his medication at the time of the 

plea), prosecutorial misconduct and coercion, and his innocence. The court conducted 

an evidentiary hearing on the motions on September 6, 2013. Petitioner argued that his 

plea was not knowing and voluntary because he was not taking his medications, felt 

coerced by the threat of additional prison time if he proceeded to trial, did not understand 

why the state refused to allow an interview of the witnesses, and felt he had to plead 

guilty because he was led to believe he would lose if he proceeded to trial, and his wife 

would be held in custody pending trial. (Exhibit K, R.T. 9/6/13 at 1-10.) He further 

argued that while counsel was reviewing the plea agreement with him she told him he 

would be getting the minimum sentence, and that he failed to alert the court when 

reviewing the plea because he was not taking his medications at the time. (Id. at 10-12.) 

He reported that the medication he began taking since “helps with voices that I hear and 

helps me to think clear, to make sound decisions in everyday life, and I just wasn’t able 

to do that the day of signing the plea agreement.” (Id. at 12.) Petitioner asked for 

additional time to have his behavioral health doctor testify, but the court related that it 

had reviewed the medical records, and Petitioner was unable to explain what additional 

testimony the doctor would add. (Id. at 12-18.) The court found no “manifest injustice,” 

and denied the motions to withdraw from the plea. (Id. at 18.) 

The court followed up with a written order, finding:

Here, Defendant contends that he was not taking various 

medications at the time he entered into the plea. His medical records 

from Southwest Behavioral (filed with one of his motions) do show 

he was diagnosed with Major Depressive Disorder with psychotic 

features and Post-Traumatic Stress Disorder. He was prescribed 

anxiety and antidepressant medications in April of 2011, but by 

August 23, 2011, Defendant had been off that medication for three 

months. Records from October 31, 2011 reflect that Defendant was 

then taking Abilify (for paranoia and disorganized thought), 

Benztropine (for EPS) and Trazadone (for insomnia). 

Defendant was arrested in February 2012 and has remained 

in jail since. His medical records from Correctional Health Services 

corroborate that he was not taking any medication while in custody 

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until he began taking Celexa, an antidepressant, in April 2013 - after 

he accepted the plea offer in this case. Defendant claims the Celexa 

helped him understand things better, and that may be so. But 

nothing in his Correctional Health Services records (or his 

Southwest Behavioral records, for that matter) indicates that 

Defendant lacked capacity to contract or that he suffered any 

condition that would invalidate his waiver of his right to trial. 

Nor has Defendant identified anything material about the 

plea agreement that he was mistaken about or did not understand. 

Indeed, Defendant was focused enough mentally during the plea 

colloquy that he insisted his conduct was not intentional, and agreed 

only that he recklessly caused the victim's injuries. 

Defendant also says that he felt coerced into accepting the 

plea agreement. But he participated in two settlement conferences 

earlier in the case; his lack of medication then did not prevent him 

from summarily rejecting the State's plea offers. Defendant also 

denied any coercion during the plea colloquy. 

Defendant stresses also that his lawyer advised him that he 

was likely to be found guilty. But his counsel's frank assessment of 

the case does not constitute coercion. Nor does the fact that the State 

secured the testimony of two critical witnesses for trial mean 

Defendant's decision to plead guilty was not voluntary. 

In short, Defendant's guilty plea on the eve of trial was made 

knowingly, intelligently and voluntarily. The Court finds no 

manifest injustice permitting the Defendant to withdraw from the 

plea.

(Exhibit L, M.E. 9/19/13 at 3.)

Petitioner appeared for sentencing on September 26, 2013. The prosecution 

argued Petitioner’s priors and danger to the community, and requested the maximum 

sentence of 15 years. (Exhibit N, R.T. 9/26/13 at 1-6.) The defense argued Petitioner’s 

mental health history, troubles with alcohol abuse, an abusive upbringing, and lack of 

access to his mental health medications, and asked for a “slightly mitigated sentence.” 

(Id. at 6-8.) The court sentenced Petitioner to an aggravated term of 10 years (plus the 

consecutive probation), citing as aggravators Petitioner’s criminal and violent record, 

and as mitigators his upbringing, mental health and alcohol abuse history, and efforts to 

obtain help on his own. (Id. at 9-13.) Petitioner was given a concurrent two and onehalf year sentence on the probation matter. (Id. at 14.) 

B. PROCEEDINGS ON DIRECT APPEAL

Petitioner did not file a traditional direct appeal. (Petition, Doc. 1 at 2.)

Moreover, as a pleading defendant, Petitioner had no right to file such a direct 

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appeal. See Ariz.R.Crim.P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 

P.2d 614, 616 (1995).

C. PROCEEDINGS ON POST-CONVICTION RELIEF

Less than sixty days later, on November 21, 2013, Petitioner filed a Notice of 

Post-Conviction Relief (Exhibit O). Counsel was appointed, who eventually filed a 

notice of inability to find an issue for review. (Exhibit P, M.E. 12/23/13; Exhibit S, M.E. 

7/30/14.) Petitioner was given leave to file a pro per PCR petition by September 15, 

2014, and counsel was ordered to remain in an advisory capacity. (Exhibit S, M.E. 

7/30/14.) On September 29, 2014, the Court expanded the deadline to October 29, 2014. 

(Exhibit X, M.E. 2/10/15 at 2.) 

On November 4, 2014, some six days after the deadline, Petitioner filed his pro 

per PCR petition (Exhibit T). Petitioner raised claims of ineffective assistance of 

counsel based on counsel’s failure to advise him the plea offered was no longer capped 

at 7.5 years, and failure to obtain witness statements. 

The PCR court found that both claims were precluded as untimely, Petitioner’s 

petition having been filed after the expiration of the deadline. The PCR petition was 

dismissed. (Exhibit X, M.E. 2/10/15.) 

Petitioner did not seek review by the Arizona Court of Appeals. (Petition, Doc. 1 

at 5; Exhibit Y, Clerk Response.) 

D. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition - Petitioner commenced the current case by filing his Petition for Writ of 

Habeas Corpus pursuant to 28 U.S.C. § 2254 on December 7, 2015 (Doc. 1). 

Petitioner’s Petition asserts the following four grounds for relief:

In Ground One, Petitioner alleges that he received ineffective 

assistance of counsel when his counsel allowed him to accept a plea 

deal that was different than what had been promised to him. In 

Ground Two, Petitioner alleges that his sentence is illegal because 

the plea agreement he accepted provided for a term of imprisonment 

of 7.5 years, but he was sentenced to 10 years. In Ground Three, 

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Petitioner alleges that he was subjected to prosecutorial misconduct 

when the prosecutor coerced Petitioner into pleading guilty by 

threatening to incarcerate his wife and daughter if his wife refused 

to testify. In Ground Four, Petitioner alleges that he was denied his 

right to competent counsel when his counsel left the courtroom 

when Petitioner was signing the plea agreement.

(Order 12/18/15, Doc. 4 at 1-2.) 

Response - On January 26, 2016 Respondents filed their Response (“Answer”) 

(Doc. 7). Respondents concede that the petition is timely,1but argue that Petitioner 

failed to properly exhaust his state remedies, and that Ground 1 was barred on a 

procedural state ground. Respondents argue that Petitioner cannot rely upon ineffective 

assistance of PCR counsel to excuse his procedural failures because Petitioner’s defaults 

occurred when he failed to include the claims in his pro per PCR petition, and then again 

when he failed to seek review by the Arizona Court of Appeals. Respondents also argue 

that Martinez v. Ryan has no application because Petitioner’s of-right PCR proceeding 

was the functional equivalent of a direct appeal.

Reply – Petitioner was given 30 days from service of the Answer, or until 

Monday, February 29, 2016, to reply in support of his Petition. That time has passed, 

and Petitioner has not replied.

III. APPLICATION OF LAW TO FACTS

A. EXHAUSTION, PROCEDURAL DEFAULT AND PROCEDURAL BAR

Respondents argue that Petitioner’s claims are either procedurally defaulted or 

were procedurally barred on an independent and adequate state ground, and thus are 

 

1

The undersigned determines hereinafter that Petitioners’ PCR proceeding terminated on 

October 29, 2014, when the time to file his PCR petition expired. On that basis, the 

subsequent PCR petition amounted to a second PCR proceeding, and because it was 

untimely, it would not have tolled the statute of limitations. Assuming arguendo that 

Petitioner had 30 days after the October 29, 2014 deadline to seek review in his of-right 

PCR proceeding, that would mean his conviction became final on November 28, 2014, 

and his one year expired one year later on November 28, 2015, making his December 7, 

2015 federal petition some 9 days delinquent. Nonetheless, because Respondents do not 

urge the statute of limitations as a defense, the undersigned does not address it. See Day 

v. McDonough, 547 U.S. 198, 209 (2006) (“district courts are permitted, but not obliged, 

to consider, sua sponte, the timeliness of a state prisoner's habeas petition”).

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barred from federal habeas review.

1. Exhaustion Requirement

Generally, a federal court has authority to review a state prisoner’s claims only if 

available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 

(1981) (per curiam). The exhaustion doctrine, first developed in case law, has been 

codified at 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on 

the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 

650 F.2d 1103, 1104 (9th Cir. 1981)(per curiam), cert. denied, 455 U.S. 1023 (1982).

Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented 

his federal claims to the state courts. “A petitioner fairly and fully presents a claim to the 

state court for purposes of satisfying the exhaustion requirement if he presents the claim: 

(1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper 

factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th 

Cir. 2005).

Proper Forum - “In cases not carrying a life sentence or the death penalty, 

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

Arizona Court of Appeals has ruled on them.’” Castillo v. McFadden, 399 F.3d 993, 998 

(9th Cir. 2005)(quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)).

Proper Vehicle - Ordinarily, “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.” Roettgen v. Copeland, 33 

F.3d 36, 38 (9th Cir. 1994). Only one of these avenues of relief must be exhausted 

before bringing a habeas petition in federal court. This is true even where alternative 

avenues of reviewing constitutional issues are still available in state court. Brown v. 

Easter, 68 F.3d 1209, 1211 (9th Cir. 1995); Turner v. Compoy, 827 F.2d 526, 528 (9th 

Cir. 1987), cert. denied, 489 U.S. 1059 (1989). 

Factual Basis – A petitioner must have fairly presented the operative facts of his 

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federal claim to the state courts as part of the same claim. A petitioner may not broaden 

the scope of a constitutional claim in the federal courts by asserting additional operative 

facts that have not yet been fairly presented to the state courts. Expanded claims not 

presented in the highest state court are not considered in a federal habeas petition. 

Brown v. Easter, 68 F.3d 1209 (9th Cir. 1995); see also, Pappageorge v. Sumner, 688 

F.2d 1294 (9th Cir. 1982), cert. denied, 459 U.S. 1219 (1983). And, while new factual 

allegations do not ordinarily render a claim unexhausted, a petitioner may not 

"fundamentally alter the legal claim already considered by the state courts." Vasquez v. 

Hillery, 474 U.S. 254, 260 (1986). See also Chacon v. Wood, 36 F.3d 1459, 1468 (9th 

Cir.1994).

Legal Basis - Failure to alert the state court to the constitutional nature of the 

claim will amount to failure to exhaust state remedies. Duncan v. Henry, 513 U.S. 364, 

366 (1995). While the petitioner need not recite “book and verse on the federal 

constitution,” Picard v. Connor, 404 U.S. 270, 277-78 (1971) (quoting Daugherty v. 

Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), it is not enough that all the facts necessary 

to support the federal claim were before the state courts or that a “somewhat similar state 

law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982)(per curiam). “[T]he 

petitioner must make the federal basis of the claim explicit either by specifying particular

provisions of the federal Constitution or statutes, or by citing to federal case law,” 

Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005), or by “a citation to a state 

case analyzing [the] federal constitutional issue." Peterson v. Lampert, 319 F.3d 1153, 

1158 (9th Cir. 2003). But a drive-by-citation of a state case applying federal and state 

law is not sufficient. 

For a federal issue to be presented by the citation of a state decision 

dealing with both state and federal issues relevant to the claim, the 

citation must be accompanied by some clear indication that the case 

involves federal issues. Where, as here, the citation to the state case 

has no signal in the text of the brief that the petitioner raises federal 

claims or relies on state law cases that resolve federal issues, the 

federal claim is not fairly presented. 

Casey v. Moore, 386 F.3d 896, 912 n. 13 (9th Cir. 2004). 

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Fair Presentation - "[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." Baldwin v. Reese, 541 U.S. 27, 32 (2004). 

The Arizona habeas petitioner "must have presented his federal, constitutional issue 

before the Arizona Court of Appeals within the four corners of his appellate briefing." 

Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005). But see Insyxiengmay v. 

Morgan, 403 F.3d 657, 668-669 (9th Cir. 2005) (arguments set out in appendix attached 

to petition and incorporated by reference were fairly presented).

2. Procedural Default

Ordinarily, unexhausted claims are dismissed without prejudice. Johnson v. 

Lewis, 929 F.2d 460, 463 (9th Cir. 1991). However, where a petitioner has failed to 

properly exhaust his available administrative or judicial remedies, and those remedies are 

now no longer available because of some procedural bar, the petitioner has "procedurally 

defaulted" and is generally barred from seeking habeas relief. Dismissal with prejudice 

of a procedurally defaulted habeas claim is generally proper absent a “miscarriage of 

justice” which would excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).

Respondents argue that Petitioner may no longer present his unexhausted claims 

to the state courts. Respondents rely upon Arizona’s preclusion bar, set out in Ariz. R. 

Crim. Proc. 32.2(a) and time limit bar, set out in Ariz. R. Crim. P. 32.4. (Answer, Doc. 

7 at 9.) 

Remedies by Direct Appeal - Under Ariz.R.Crim.P. 31.3, the time for filing a 

direct appeal expires twenty days after entry of the judgment and sentence. Further, no 

provision is made for a successive direct appeal. Accordingly, direct appeal is no longer 

available for review of Petitioner’s unexhausted claims. Moreover, as noted above, 

Petitioner, as a pleading defendant, had no right to file a traditional direct appeal.

Remedies by Post-Conviction Relief – Under Arizona’s preclusion, waiver and 

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timeliness bars, Petitioner can no longer seek review by a subsequent PCR Petition. 

Preclusion Bar – Under the rules applicable to Arizona’s post-conviction process, 

a claim may not be brought in a petition for post-conviction relief if the claim was 

“[f]inally adjudicated on the merits on appeal or in any previous collateral proceeding.” 

Ariz. R. Crim. P. 32.2(a)(2). 

Waiver Bar - Under the rules applicable to Arizona's post-conviction process, a 

claim may not ordinarily be brought in a petition for post-conviction relief that "has been 

waived at trial, on appeal, or in any previous collateral proceeding." Ariz.R.Crim.P. 

32.2(a)(3). Under this rule, some claims may be deemed waived if the State simply 

shows "that the defendant did not raise the error at trial, on appeal, or in a previous 

collateral proceeding." Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) 

(quoting Ariz.R.Crim.P. 32.2, Comments). But see State v. Diaz, 236 Ariz. 361, 340 P.3d 

1069 (2014) (failure of PCR counsel, without fault by petitioner, to file timely petition in 

prior PCR proceedings did not amount to waiver of claims of ineffective assistance of 

trial counsel). 

For others of "sufficient constitutional magnitude," the State "must show that the 

defendant personally, ''knowingly, voluntarily and intelligently' [did] not raise' the 

ground or denial of a right." Id. That requirement is limited to those constitutional 

rights “that can only be waived by a defendant personally.” State v. Swoopes, 216 Ariz.

390, 399, 166 P.3d 945, 954 (App.Div. 2, 2007). Indeed, in coming to its prescription in 

Stewart v. Smith, the Arizona Supreme Court identified: (1) waiver of the right to 

counsel, (2) waiver of the right to a jury trial, and (3) waiver of the right to a twelveperson jury under the Arizona Constitution, as among those rights which require a 

personal waiver. 202 Ariz. at 450, 46 P.3d at 1071. Claims based upon ineffective 

assistance of counsel are determined by looking at “the nature of the right allegedly 

affected by counsel’s ineffective performance. Id.

Here, none of Petitioner’s claims are of the sort requiring a personal waiver, and 

Petitioner’s claims of ineffective assistance similarly have at their core the kinds of 

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claims not within the types identified as requiring a personal waiver.

Timeliness Bar - Even if not barred by preclusion or waiver, Petitioner would now 

be barred from raising his claims by Arizona’s time bars. Ariz.R.Crim.P. 32.4 requires 

that petitions for post-conviction relief (other than those which are “of-right”) be filed 

“within ninety days after the entry of judgment and sentence or within thirty days after 

the issuance of the order and mandate in the direct appeal, whichever is the later.” See 

State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (App. 1995) (applying 32.4 to successive 

petition, and noting that first petition of pleading defendant deemed direct appeal for 

purposes of the rule). That time has long since passed.

Exceptions - Rules 32.2 and 32.4(a) do not bar dilatory claims if they fall within 

the category of claims specified in Ariz.R.Crim.P. 32.1(d) through (h). See Ariz. R. 

Crim. P. 32.2(b) (exceptions to preclusion bar); Ariz. R. Crim. P. 32.4(a) (exceptions to 

timeliness bar). Petitioner has not asserted that any of these exceptions are applicable to 

his claims. Nor does it appears that such exceptions would apply. The rule defines the 

excepted claims as follows:

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.

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Ariz.R.Crim.P. 32.1.

Paragraph 32.1 (d) (expired sentence) generally has no application to an Arizona 

prisoner who is simply attacking the validity of his conviction or sentence. Where a 

claim is based on "newly discovered evidence" that has previously been presented to the 

state courts, the evidence is no longer "newly discovered" and paragraph (e) has no 

application. Petitioner proffers nothing to suggest that he has only recently discovered 

the facts underlying his claims. Paragraph (f) has no application where the petitioner 

filed a timely notice of post-conviction relief. Paragraph (g) has no application because 

Petitioner has not asserted a change in the law since his last PCR proceeding. Finally, 

paragraph (h), concerning claims of actual innocence, has no application to the 

procedural claims Petitioner asserts in this proceeding.

Therefore, none of the exceptions apply, and Arizona’s time and waiver bars 

would prevent Petitioner from returning to state court. Thus, Petitioner’s claims that 

were not fairly presented are all now procedurally defaulted.

3. Procedural Bar on Independent and Adequate State Grounds

Related to the concept of procedural default is the principle of barring claims 

actually disposed of by the state courts on state grounds. “[A]bsent showings of ‘cause’ 

and ‘prejudice,’ federal habeas relief will be unavailable when (1) ‘a state court [has] 

declined to address a prisoner's federal claims because the prisoner had failed to meet a 

state procedural requirement,’ and (2) ‘the state judgment rests on independent and 

adequate state procedural grounds.’ ” Walker v. Martin, 562 U.S. 307, 316 (2011).

In Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003), the Ninth Circuit addressed 

the burden of proving the independence and adequacy of a state procedural bar.

Once the state has adequately pled the existence of an independent 

and adequate state procedural ground as an affirmative defense, the 

burden to place that defense in issue shifts to the petitioner. The 

petitioner may satisfy this burden by asserting specific factual 

allegations that demonstrate the inadequacy of the state procedure, 

including citation to authority demonstrating inconsistent 

application of the rule. Once having done so, however, the ultimate 

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burden is the state's. 

Id. at 584-585. 

Waiver Bar - Petitioner fails to proffer anything to suggest that Rule 32.2(a) is 

not an independent and adequate state ground, sufficient to bar federal habeas review of 

claims a defendant could have but did not raise on direct appeal. The federal courts have 

routinely held that it is. “Arizona's waiver rules are independent and adequate bases for 

denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir.) cert. denied, 135 S. Ct. 710 

(2014). See also Stewart v. Smith, 536 U.S. 856, 861 (2002) (Arizona’s waiver rule is 

independent of federal law); and Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998) 

(adequate because consistently and regularly applied).

Timeliness Bar – Similarly, Petitioner fails to proffer anything to suggest that 

Rule 32.4 is not an independent and adequate state ground, sufficient to bar federal 

habeas review of claims a defendant could have but did not raise on direct appeal. The 

district courts in Arizona have held that it is. See e.g. Morgal v. Ryan, 2013 WL 655122, 

at *16 (D. Ariz. Jan. 18, 2013) report and recommendation adopted, 2013 WL 645960 

(D. Ariz. Feb. 21, 2013).

4. Application to Petitioner’s Claims

a) Ground One

In Ground One of his Petition, Petitioner argues that he received ineffective 

assistance of counsel when his counsel allowed him to accept a plea deal that was 

different than what had been promised to him. In particular, he asserts he had been 

promised a capped sentence of 7.5 years, and counsel failed to advise Petitioner that the 

cap no longer applied. (Petition, Doc. 1 at 6.) 

Petitioner properly notes that this claim could not be raised on traditional direct 

appeal. (Id.) See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002)

(“ineffective assistance of counsel claims are to be brought in Rule 32 

proceedings...[and] will not be addressed by appellate courts regardless of merit”).

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Respondents argue that this claim was raised in Petitioner’s pro per PCR petition, 

but was disposed of as untimely, under Arizona’s time bar, which is independent and 

adequate, and thus bars federal habeas review of Petitioner’s claim.

Indeed, although Petitioner’s original of-right proceeding was commenced on a 

timely basis, Petitioner’s pro per PCR petition was disposed of as untimely, based upon 

Petitioner’s failure to file it within the briefing time limit set by the PCR court. The 

claims asserted in that delinquent petition included the instant claim regarding the failure 

to advise him about the absence of a cap on sentencing.

Respondents assert that this ruling amounted to the application of a state rule that 

was independent and adequate to bar federal review. Because Respondents have

adequately pled the procedural bar, the burden shifts to Petitioner to make out a prima 

facie argument that the rule was either not independent of federal law, or inadequate. 

Bennett, 322 F.3d at 584-585. Petitioner proffers nothing to meet this burden.

The undersigned finds no basis to conclude that the rule was dependent upon an 

antecedent ruling on the merits of the federal claim, or that it was not well-established 

and regularly applied. This is particularly because the PCR court had already once 

extended the deadline. Cf. Williams v. Ryan, 623 F.3d 1258, 1264 (9th Cir. 2010) (denial 

of any extension of time to file PCR petition not well established rule in Arizona). 

Accordingly, the undersigned concludes that Petitioner’s Ground One was 

procedurally barred on an independent and adequate state ground.

b) Ground Two

In his Ground Two, Petitioner argues that his sentence is illegal because the plea 

agreement he accepted provided for a term of imprisonment of 7.5 years, but he was 

sentenced to 10 years. (Petition, Doc. 1 at 7.) 

Respondents argue that this claim, along with Grounds Three and Four, has never 

been presented to the Arizona Court of Appeals, and is not procedurally defaulted.

Indeed, Petitioner has not presented any claim to the Arizona Court of Appeals. 

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Accordingly, none of his claims was properly exhausted. Moreover, this claim was not 

presented to the PCR court, and thus was not procedurally barred. It is, however, 

procedurally defaulted under Arizona’s preclusion and timeliness bars.

c) Ground Three

In Ground Three, Petitioner alleges that he was subjected to prosecutorial 

misconduct when the prosecutor coerced Petitioner into pleading guilty by threatening to 

incarcerate his wife and daughter if his wife refused to testify. (Petition, Doc. 1 at 8.) 

Again, this claim was not presented to the PCR court, has never been presented to the 

Arizona Court of Appeals, and is now procedurally defaulted.

d) Ground Four

In Ground Four, Petitioner alleges that he was denied his right to competent 

counsel when his counsel left the courtroom when Petitioner was signing the plea 

agreement. (Petition, Doc. 1 at 9.) Again, this claim was not presented to the PCR court, 

has never been presented to the Arizona Court of Appeals, and is now procedurally 

defaulted.

It is true that Petitioner presented other claims of ineffective assistance to the PCR 

court, but claims of ineffective assistance are not fungible. Each must be separately 

raised. See Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982) (presentation 

of “additional facts of attorney incompetence” transformed claim into one not presented 

to state court); and Carriger v. Lewis, 971 F.2d 329, 333-34 (9th Cir. 1992) (rejecting 

argument that presentation of any claim of ineffectiveness results in fair presentation of 

all claims of ineffective assistance).

e) Summary Re Exhaustion

Based upon the foregoing, the undersigned concludes that Petitioner has 

procedurally defaulted on his claims in Grounds Two, Three and Four, and was 

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procedurally barred on independent and adequate state grounds from asserting the claim 

in Ground One. 

5. Cause and Prejudice

If the habeas petitioner has procedurally defaulted on a claim, or it has been 

procedurally barred on independent and adequate state grounds, he may not obtain 

federal habeas review of that claim absent a showing of “cause and prejudice” sufficient 

to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).

"Cause" is the legitimate excuse for the default. Thomas v. Lewis, 945 F.2d 1119, 

1123 (1991). "Because of the wide variety of contexts in which a procedural default can 

occur, the Supreme Court 'has not given the term "cause" precise content.'" Harmon v. 

Barton, 894 F.2d 1268, 1274 (11th Cir. 1990) (quoting Reed, 468 U.S. at 13), cert. 

denied, 498 U.S. 832 (1990). The Supreme Court has suggested, however, that cause 

should ordinarily turn on some objective factor external to petitioner, for instance:

... a showing that the factual or legal basis for a claim was not 

reasonably available to counsel, or that "some interference by 

officials", made compliance impracticable, would constitute cause 

under this standard. 

Murray v. Carrier, 477 U.S. 478, 488 (1986) (citations omitted). 

Petitioner has not replied to assert any basis for cause and prejudice. In his 

Petition, however, he did assert that his failure to present the claims was the result of the 

ineffective assistance of PCR counsel. (Petition, Doc. 1 at 6-9.) 

a) Ineffectiveness of PCR Counsel Ordinarily Not Cause

Ordinarily, to meet the “cause” requirement, the ineffective assistance of counsel 

must amount to an independent constitutional violation. Ortiz v. Stewart, 149 F.3d 923, 

932, (9th Cir. 1998). Accordingly, where no constitutional right to an attorney exists, 

ineffective assistance will not amount to cause excusing the state procedural default. Id. 

"Ineffective assistance of counsel can constitute cause to excuse a procedural default 

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only if the petitioner had a constitutional right to counsel in the proceeding in which the 

default occurred. . . . The fact that counsel is appointed by the state court does not 

change the result, because counsel is not constitutionally required." Smith v. State of 

Idaho, 392 F.3d 350, 357 (9th Cir. 2004) (emphasis in original, citations omitted). If 

there is no federal constitutional right to counsel, a petitioner "cannot establish cause 

because of the state trial court’s failure to appoint him counsel, even if such failure was 

erroneous as a matter of state law." Smith, 392 F.3d at 357 . In Patrick Poland v. 

Stewart, 169 F. 3d 573 (9th Cir. 1999), the Ninth Circuit held that “[b]ecause there is no 

right to an attorney in state post-conviction proceedings, there cannot be constitutionally 

ineffective assistance of counsel in such proceedings.” Id. at 588 (quoting Coleman v. 

Thompson, 501 U.S. 722, 752 (1991)). 

b) Exception for Abandonment without Notice

The Supreme Court has recognized two exceptions to the general rule that 

ineffectiveness of PCR counsel is not cause.

The first exception was recognized in Maples v. Thomas, 132 S.Ct. 912 (2012), 

where the Supreme Court held that cause could be shown when PCR counsel was not 

merely negligent (and under the law of agency that negligence being chargeable to the 

petitioner) but had abandoned the representation without notice to the petitioner, 

resulting in the loss of his state remedies. 

Here, however, Petitioner does not suggest that counsel abandoned the 

representation without notice, merely that counsel was deficient in not bringing claims 

Petitioner asserts are meritorious. Indeed, PCR counsel filed the appropriate notice to 

the Court when he was unable to find an issue of review. Thus, any such deficiency was 

not external to the defense, and is chargeable to Petitioner. 

c) Exception for Claims re Ineffectiveness of Trial & Appellate Counsel

The second exception to the general rule that ineffectiveness of PCR counsel does 

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not establish cause concerns the failure of PCR counsel to bring claims of ineffective 

assistance of trial counsel.

In Martinez v. Ryan, 132 S.Ct. 1309 (2012), the Supreme Court recognized that 

because state courts increasingly reserve review of claims of ineffective assistance of 

trial counsel to post-conviction relief proceedings, the ineffectiveness of counsel in such 

PCR proceedings could effectively defeat any review of trial counsel’s ineffectiveness. 

Accordingly, the Court recognized a narrow exception to the Court’s ruling in Coleman, 

supra, that the ineffectiveness of PCR counsel cannot provide cause. Arizona, the state 

at issue in Martinez, is just such a state, and accordingly ineffective assistance of PCR 

counsel can establish cause to excuse a procedural default of a claim of ineffective 

assistance of trial counsel. In Ha Van Nguyen, 736 F.3d 1287 (9th Cir. 2013), the Ninth 

Circuit extended Martinez to PCR counsel’s ineffectiveness in failing to bring claims of 

ineffective assistance of appellate counsel. 

However, the Martinez court made clear that the limited exception it was creating 

for ineffectiveness of PCR counsel as “cause” did not extend outside the initial PCR 

proceeding.

The holding in this case does not concern attorney errors in other 

kinds of proceedings, including appeals from initial-review 

collateral proceedings, second or successive collateral proceedings, 

and petitions for discretionary review in a State's appellate courts. It 

does not extend to attorney errors in any proceeding beyond the first 

occasion the State allows a prisoner to raise a claim of ineffective 

assistance at trial, even though that initial-review collateral 

proceeding may be deficient for other reasons.

Martinez, 132 S.Ct. at 1320. 

For Petitioner to rely upon Martinez, Petitioner must “demonstrate[e] two things: 

(1) ‘counsel in the initial-review collateral proceeding, where the claim should have been 

raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668, 

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),’ and (2) ‘the underlying ineffective-assistanceof-trial-counsel claim is a substantial one, which is to say that the prisoner must 

demonstrate that the claim has some merit.’” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 

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2012) (quoting Martinez, 132 S.Ct. at 1318).

d) Application of Martinez to Petitioner

Petitioner’s Grounds Two (illegal sentence), Three (prosecutorial misconduct) 

and Four (denial of counsel while signing), do not assert claims of ineffective assistance 

of trial counsel. Accordingly, and ineffectiveness of PCR counsel in failing to raise 

these claims would not ordinarily establish cause under Martinez.

Petitioner’s Grounds One (ineffectiveness re cap) does assert a claim of 

ineffective assistance of trial counsel. 

In a footnote, Respondents assert the novel argument that Martinez is not 

applicable because Petitioner’s of-right PCR proceeding was the functional equivalent of 

an appeal. “Petitioner’s of-right PCR proceedings were not collateral in nature; rather, 

they were the functional equivalent of a direct appeal.” (Answer, Doc. 7 at 11, n. 10 

(citing Summers v. Schriro, 481 F.3d 710, 716-717 (9th Cir. 2007).) Respondents thus 

equate of-right PCR counsel to constitutionally required appellate counsel, whose 

ineffectiveness is not governed (at least directly) by Martinez, and further argue that this 

effectively removes Arizona in total from Martinez because (construing of-right PCR 

proceedings as a direct appeal), Arizona does not preclude pleading defendants from 

raising claims of ineffective assistance of PCR counsel on what is functionally their 

direct appeal. (Id. (citing State v. Banda, 307 P.3d 1009, 1012, ¶ 12 (Ariz. App. 2013) 

(claims of ineffective assistance of trial counsel with respect to the acceptance or 

rejection of plea agreements are properly raised in of-right PCR proceedings)).)

The undersigned finds Respondents’ logic compelling.

However, this logic requires that this Court treat Petitioner’s of-right PCR 

proceeding as an appeal not only for purposes of deciding whether Martinez applies, but 

for all purposes. This means that Petitioner was constitutionally entitled to counsel in 

such proceeding, and any ineffectiveness of Petitioner’s PCR counsel in bringing any 

claims (not just claims of ineffective assistance of trial counsel) must be deemed to be a 

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basis for a finding of cause and prejudice. Respondents provide no principled basis for 

distinguishing between one flavor of claim raised on (the functional equivalent) of direct 

appeal, and another flavor.

Admittedly this approach seems to go where the Martinez Court avoided going. 

Coleman v. Thompson left open, and the Court of Appeals in 

this case addressed, a question of constitutional law: whether a 

prisoner has a right to effective counsel in collateral proceedings 

which provide the first occasion to raise a claim of ineffective 

assistance at trial. These proceedings can be called, for purposes of 

this opinion, “initial-review collateral proceedings.” Coleman had 

suggested, though without holding, that the Constitution may 

require States to provide counsel in initial-review collateral 

proceedings because “in [these] cases ... state collateral review is the 

first place a prisoner can present a challenge to his conviction.” As 

Coleman noted, this makes the initial-review collateral proceeding a 

prisoner's “one and only appeal” as to an ineffective-assistance 

claim, and this may justify an exception to the constitutional rule 

that there is no right to counsel in collateral proceedings. 

This is not the case, however, to resolve whether that 

exception exists as a constitutional matter.

Martinez, 132 S.Ct. at 1315.

Of course, in Martinez, Respondent argued that its PCR proceeding in that case, 

which involved a non-pleading defendant, was not an appellate proceeding in which 

there was a constitutional right to effective assistance of counsel. Respondent’s Brief on 

Merits, Martinez v. Ryan, 2011 WL 3947554 6 (2011). In contrast to Martinez, 

however, Petitioner did not go to trial, but pled guilty, and thus had no ability whatsoever 

to a traditional direct appeal. At least he had no such opportunity beyond an of-right 

PCR proceeding, which Respondents now concede should be deemed a direct appeal. 

Thus, Respondents now functionally urge this Court to find a constitutional right of 

effective assistance in an of-right PCR proceeding, on the basis that it is really a direct 

appeal.

Undoubtedly, the jurisprudence of the Supreme Court and the Ninth Circuit has 

uniformly declined to find a constitutional right to counsel in collateral review 

proceedings. See Martinez, 132 S.Ct. at 1315; and Ellis v. Armenakis, 222 F.3d 627, 633 

(9th Cir. 2000). But both recognize a right to counsel in a direct appeal. See Halbert v. 

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Michigan, 545 U.S. 605, 610 (2005) (“the Due Process and Equal Protection Clauses 

require the appointment of counsel for defendants, convicted on their pleas, who seek 

access to first-tier review”); Hendricks v. Zenon, 993 F.2d 664, 669 (9th Cir. 1993). 

The Ninth Circuit has already recognized in a different context that an Arizona ofright PCR proceeding by a pleading defendant is the functional equivalent of direct 

appeal. In Summers v. Schriro, 481 F.3d 710 (9th Cir. 2007), the Ninth Circuit noted in 

the context of applying the habeas statute of limitations that prior decisions treating such 

a proceeding as collateral review, rather than direct review was “based on the parties' 

uncontested joint position, [and] was unconsidered dictum.” Id. at 712. The court 

referenced the Supreme Court’s decision in Halbert that Michigan’s “first-tier ‘of-right’

review procedure available to a plea-convicted Michigan defendant in lieu of a 

conventional direct appeal is a form of ‘direct review’.” Id.at 713. The court opined that 

Halbert “signals that some non-traditional state review procedures are forms of direct 

rather than collateral review.” Id On that basis, the Summers court concluded that 

Arizona’s of-right PCR proceeding “is a form of direct review within the meaning of 28 

U.S.C. § 2244(d)(1)(A).” 481 F.3d at 717. 

In two other cases in the District of Arizona, the courts have concluded that an 

Arizona pleading defendant has a constitutional right to counsel in an of-right PCR 

proceeding. SeeWalker v. Ryan, 2015 WL 10575864, at *5 (D. Ariz. Oct. 21, 2015) 

report and recommendation adopted, CV-15-00072-PHX-ROS, 2016 WL 1268487 (D. 

Ariz. Mar. 31, 2016); and Ree v. Ryan, CV-13-00746-TUC-RM, 2015 WL 3889360, at 

*1 (D. Ariz. June 23, 2015).

Similarly here, this Court can and should accept Respondents’ assertion that 

Petitioner’s of-right PCR proceeding must be treated, like the Michigan procedure in 

Halbert, as a direct appeal, rather than collateral review.

Accordingly, Martinez has no application to evaluating the performance of 

Petitioner’s counsel in that direct appeal proceeding. Instead, the normal rule applicable 

to counsel in direct appeals, that applied in Halbert, should apply. And the clear rule is 

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that ineffective assistance of counsel in a direct appeal can establish cause to excuse a 

procedural default. See Murray, 477 U.S. at 492. 

e) Failure to Exhaust Claims re Of-Right PCR Counsel 

The Ninth Circuit has concluded that a Martinez ineffective assistance of PCR 

counsel claim used to establish cause for a procedural default of a claim for ineffective 

assistance of trial counsel need not be exhausted itself. Dickens v. Ryan, 740 F.3d 1302, 

1322 n. 17 (9th Cir. 2014) (“where Martinez applies, there seems to be no requirement 

that the claim of ineffective assistance of PCR counsel as cause for an ineffectiveassistance-of-sentencing-counsel claim be presented to the state courts”).

Conversely, claims of ineffective assistance of constitutionally required appellate 

counsel must be properly exhausted to be considered as cause to excuse procedural 

defaults or procedural bars. “To constitute cause for procedural default of a federal 

habeas claim, the constitutional claim of ineffective assistance of counsel must first have 

been presented to the state courts as an independent claim.” Cockett v. Ray, 333 F.3d 

938, 943 (9th Cir. 2003). See 

Murray, 477 U.S. at 489. 

Here, Petitioner has not properly exhausted any claims by presenting them to the 

Arizona Court of Appeals, including claims that his counsel in his of-right PCR 

proceeding was ineffective. Petitioner clearly had the right to assert such claims in a 

subsequent PCR proceeding. See Osterkamp v. Browning, 226 Ariz. 485, 489, ¶ 17, 250 

P.3d 551, 555 (App. 2011) (finding right to counsel in PCR proceeding asserting 

ineffectiveness of counsel in of-right PCR proceeding). 

Because he failed to exhaust his state remedies on a claim of ineffective 

assistance of of-right PCR counsel, such ineffectiveness cannot be considered as cause to 

excuse his procedural defaults.

/ /

/ /

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f) Summary re Cause and Prejudice

Based upon the foregoing, the undersigned concludes that Petitioner has failed to 

establish cause to excuse his procedural defaults.

Although both "cause" and "prejudice" must be shown to excuse a procedural 

default, a court need not examine the existence of prejudice if the petitioner fails to 

establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 

F.2d 1119, 1123 n. 10 (9th Cir.1991). Petitioner has filed to establish cause for his 

procedural default. Accordingly, this Court need not examine the merits of Petitioner's 

claims or the purported "prejudice" to find an absence of cause and prejudice. 

6. Actual Innocence

The standard for “cause and prejudice” is one of discretion intended to be flexible 

and yielding to exceptional circumstances, to avoid a “miscarriage of justice.” Hughes v. 

Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Accordingly, 

failure to establish cause may be excused “in an extraordinary case, where a 

constitutional violation has probably resulted in the conviction of one who is actually 

innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986) (emphasis added). Although 

not explicitly limited to actual innocence claims, the Supreme Court has not yet 

recognized a "miscarriage of justice" exception to exhaustion outside of actual 

innocence. See Hertz & Lieberman, Federal Habeas Corpus Pract. & Proc. §26.4 at 

1229, n. 6 (4th ed. 2002 Cumm. Supp.). The Ninth Circuit has expressly limited it to 

claims of actual innocence. Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008). 

A petitioner asserting his actual innocence of the underlying crime must show "it 

is more likely than not that no reasonable juror would have convicted him in the light of 

the new evidence" presented in his habeas petition. Schlup v. Delo, 513 U.S. 298, 327 

(1995). A showing that a reasonable doubt exists in the light of the new evidence is not 

sufficient. Rather, the petitioner must show that no reasonable juror would have found 

the defendant guilty. Id. at 329. This standard is referred to as the “Schlup

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gateway.” Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002).

Petitioner fails to offer any showing that no reasonable juror would have found 

him guilty. Accordingly his procedurally defaulted and procedurally barred claims must 

be dismissed with prejudice. 

IV. CERTIFICATE OF APPEALABILITY

Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires 

that in habeas cases the “district court must issue or deny a certificate of appealability 

when it enters a final order adverse to the applicant.” Such certificates are required in 

cases concerning detention arising “out of process issued by a State court”, or in a 

proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 

U.S.C. § 2253(c)(1). 

Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges

detention pursuant to a State court judgment. The recommendations if accepted will 

result in Petitioner’s Petition being resolved adversely to Petitioner. Accordingly, a 

decision on a certificate of appealability is required. 

Applicable Standards - The standard for issuing a certificate of appealability 

(“COA”) is whether the applicant has “made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the 

constitutional claims on the merits, the showing required to satisfy § 2253(c) is 

straightforward: The petitioner must demonstrate that reasonable jurists would find the 

district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition 

on procedural grounds without reaching the prisoner’s underlying constitutional claim, a 

COA should issue when the prisoner shows, at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional right 

and that jurists of reason would find it debatable whether the district court was correct in 

its procedural ruling.” Id.

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Standard Not Met - Assuming the recommendations herein are followed in the 

district court’s judgment, that decision will be on procedural grounds. Under the 

reasoning set forth herein, jurists of reason would not find it debatable whether the 

district court was correct in its procedural ruling, and jurists of reason would not find the 

district court’s assessment of the constitutional claims debatable or wrong. 

Accordingly, to the extent that the Court adopts this Report & Recommendation 

as to the Petition, a certificate of appealability should be denied.

V. RECOMMENDATION

IT IS THEREFORE RECOMMENDED that the Petitioner's Petition for Writ 

of Habeas Corpus, filed December 7, 2015 (Doc. 1) be DISMISSED WITH 

PREJUDICE.

IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings 

and recommendations are adopted in the District Court’s order, a Certificate of 

Appealability be DENIED.

VI. EFFECT OF RECOMMENDATION

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. 

However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties 

shall have fourteen (14) days from the date of service of a copy of this recommendation 

within which to file specific written objections with the Court. See also Rule 8(b), Rules 

Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days 

within which to file a response to the objections. Failure to timely file objections to any 

findings or recommendations of the Magistrate Judge will be considered a waiver of a 

party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 

328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's 

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right to appellate review of the findings of fact in an order or judgment entered pursuant 

to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-

47 (9th Cir. 2007). 

Dated: May 2, 2016

15-2482r RR 16 04 14 on HC.docx

James F. Metcalf

United States Magistrate Judge

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