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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Augustine Villanueva Gutierrez,

Petitioner,

v. 

Charles L. Ryan, et al.,

Respondents.

No. CV-16-00032-PHX-ROS (ESW)

REPORT AND 

RECOMMENDATION

TO THE HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES 

DISTRICT JUDGE:

Pending before the Court is Augustine Villanueva Gutierrez’s (“Petitioner”) 

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

Respondents have answered (Doc. 12), and Petitioner has replied (Doc. 16). The matter 

is deemed ripe for consideration. 

The Petition (Doc. 1) presents four grounds for habeas relief. The undersigned 

finds that Ground One is without merit. The undersigned further finds that Grounds Two,

Three, and Four are procedurally defaulted and that the defaults should not be excused. It 

is therefore recommended that the Petition (Doc. 1) be denied and dismissed with 

prejudice. 
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I. BACKGROUND 

A. Convictions and Sentences

On July 15, 2010, a Maricopa County Grand Jury indicted Petitioner on two 

counts: (i) aggravated assault, a class 2 dangerous felony and (ii) endangerment, a class 6 

dangerous felony. (Bates No. 1-2).1

 The charges are based on a February 2010 vehicle 

collision caused by Petitioner, which resulted in an injury to a thirteen-year old child. 

(Bates No. 88). In a January 17, 2012 plea agreement, Petitioner agreed to plead guilty to 

the aggravated assault count and agreed to serve a stipulated sixteen-year prison term. 

(Bates No. 4-6). The State agreed to dismiss the endangerment count. (Bates No. 4). At

a change of plea hearing, the trial court accepted Petitioner’s guilty plea. (Bates No. 11-

12).

On January 17, 2012, the trial court sentenced Petitioner to a sixteen-year prison 

term on the aggravated assault count and granted the State’s Motion to Dismiss the 

endangerment count. (Bates No. 7-9).

B. Of-Right Post-Conviction Relief Proceeding

Petitioner filed a Notice of Post-Conviction Relief (“PCR”) on July 19, 2012.2

 

(Bates No. 13-16). The PCR Notice is dated February 21, 2012. (Bates No. 15). In an 

August 2012 minute entry, the trial court found that Petitioner demonstrated that “it is 

possible that his untimely filing [of the PCR Notice] was not his fault” and allowed the 

PCR proceeding to move forward pursuant to Ariz. R. Crim. P. 32.1(f). (Bates No. 18).

On May 30, 2013, Petitioner’s court-appointed PCR counsel notified the trial court 

that counsel was unable to find any colorable claims for relief. (Bates No. 19-20). 

Petitioner filed a pro se PCR Petition on July 18, 2013. (Bates No. 21-37). On October 

 1 Citations to the state court record submitted with Respondents’ Answer (Doc.

12) refer to the Bates-stamp numbers affixed to the lower right corner of each page of the record. 

2 The copy of the PCR Notice submitted by the State is not file-stamped. The trial court’s minute entry filed on August 24, 2012 states that the PCR Notice was “filed on 

July 19, 2011.” (Bates No. 17). It is presumed that the reference to the year 2011 instead 

of the year 2012 is merely a typographical error. The undersigned has taken judicial notice of the trial court’s docket, which indicates that Plaintiff filed a document on July 19, 2012. (Attachment 1). 
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15, 2013, the trial court dismissed the PCR Petition. (Bates No. 56-58).

Petitioner requested that the Arizona Court of Appeals review the trial court’s 

decision. (Bates No. 59-65). On September 9, 2015, the Arizona Court of Appeals 

granted review, but denied relief. (Bates No. 75-77). Petitioner did not seek further 

review by the Arizona Supreme Court.

On January 7, 2016, Petitioner 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, 

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 
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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 

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 
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proving one of two exceptions. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

F.3d 1104, 1118 (9th Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). 

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

conviction of one who is actually innocent of the offense that is the subject of the barred 

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

C. Reviewing the Merits of Habeas Claims

In reviewing the merits of a 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 
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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 

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).

Ground One of the Petition (Doc. 1), which is reviewed on the merits, presents an 

ineffective assistance of counsel claim. The “clearly established federal law” for an 

ineffective assistance of counsel claim is the two-part test articulated in Strickland v. 

Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner arguing an ineffective 

assistance of counsel claim must establish that his or her counsel’s performance was (i) 

objectively deficient and (ii) prejudiced the petitioner. Strickland, 466 U.S. at 687. This 

is a deferential standard, and “[s]urmounting Strickland’s high bar is never an easy task.” 
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Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 

U.S. 356, 371 (2010)). 

In assessing the performance factor of Strickland’s two-part test, judicial review 

“must be highly deferential” and the court must try not “to second-guess counsel’s 

assistance after conviction.” Clark, 769 F.3d at 725 (internal quotation marks and 

citation omitted). To be constitutionally deficient, counsel’s representation must fall 

below an objective standard of reasonableness such that it was outside the range of 

competence demanded of attorneys in criminal cases. Id. A reviewing court considers

“whether there is any reasonable argument” that counsel was effective. Rogovich v. 

Ryan, 694 F.3d 1094, 1105 (9th Cir. 2012). To establish the test’s performance prong in 

the context of a guilty plea, a defendant must establish that his or her counsel’s advice 

regarding the guilty plea was outside “the range of competence demanded of attorneys in 

criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56-58 (1985).

To establish the prejudice factor of Strickland’s two-part test, a petitioner must 

demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 

694. In other words, it must be shown that the “likelihood of a different result [is] 

substantial, not just conceivable.” Richter, 562 U.S. at 112. To establish prejudice in the 

context of a guilty plea, a defendant must show that “there is a reasonable probability 

that, but for counsel’s errors, he would not have pleaded guilty and would have insisted 

on going to trial.” Washington v. Lampert, 422 F.3d 869, 873 (9th Cir. 2005) (quoting 

Hill, 474 U.S. at 58-59)).

Although the performance factor is listed first in Strickland’s two-part test, a court 

may consider the prejudice factor first. In addition, a court need not consider both factors 

if the court determines that a defendant has failed to meet one factor. Strickland, 466 

U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of 

sufficient prejudice, which we expect will often be so, that course should be followed.”); 
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LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both 

deficiency and prejudice if the habeas petitioner cannot establish one or the other).

Finally, on federal habeas review, the “pivotal question is whether the state court’s 

application of the Strickland standard was unreasonable.” Richter, 131 S.Ct. at 785. And 

“it is the habeas applicant’s burden to show that the state court applied Strickland to the 

facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 

19, 25 (2002) (per curium). “Relief is warranted only if no reasonable jurist could 

disagree that the state court erred.” Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 

2014) (internal quotation marks and citation omitted).

III. ANALYSIS

A. Ground One is Without Merit

In Ground One, Petitioner presents an ineffective assistance of counsel claim that 

alleges that his defense counsel “never produced to Petitioner any of the evidence that the 

State held against Petitioner.” (Doc. 1 at 6). Petitioner contends that if he had all of the 

State’s evidence, he would not have accepted the plea agreement. (Id.; Doc. 2 at 1-3). 

Petitioner asserts that the claim contained in Ground One is addressed in Paragraph Four 

of the Arizona Court of Appeals’ decision. (Doc. 1 at 6; Bates No. 76).3

 Respondents do 

not contest Petitioner’s assertion that he fairly presented the claim contained in Ground 

One to the Arizona Court of Appeals. (Doc. 1 at 6; Doc. 12 at 10). The Arizona Court of 

Appeals described Petitioner’s claim as follows:

Gutierrez argues his trial counsel was ineffective when (1) 

counsel failed to obtain and/or provide Gutierrez a copy of a 

police report and (2) counsel allegedly told Gutierrez his 

vehicle hit the victim’s vehicle. Gutierrez contends he would 

not have pled guilty if he had known the police report showed 

that, contrary to counsel’s alleged representations, the 

victim’s vehicle struck Gutierrez’s vehicle. Gutierrez asserts 

he cannot be guilty of aggravated assault if his vehicle did not 

strike the victim’s vehicle.

 

3 Petitioner states “Note: In the Court of Appeals denying relief, the issue above is 1 and 2 at 4. Even though 1 and 2 are in a way separate, to show the issue they must be 

put together.” (Doc. 1 at 6).
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(Bates No. 76). 

In affirming the trial court’s dismissal of the claim presented in Ground One, the 

Arizona Court of Appeals focused on the prejudice prong of the Strickland test, stating 

that relief is denied “because there is no reasonable probability the result of the 

proceeding would have been different but for counsel’s alleged actions or inactions.” 

(Bates No. 77). The Court of Appeals elaborated as follows:

The basis for why Gutierrez claims he would not have pled 

guilty is wholly unfounded. While the [police] report 

indicates the victim’s vehicle struck Gutierrez’s vehicle, the 

report further indicates the victim’s vehicle struck Gutierrez’s 

vehicle because Gutierrez failed to yield right of way and 

turned left in front of the victim’s vehicle. Further, Gutierrez 

admitted at the change of plea hearing that he recklessly 

caused the accident and the injuries to the victim when he 

turned left in front of the victim’s vehicle while he drove with 

a blood alcohol concentration of .15 percent. Gutierrez 

acknowledged in his petition for post-conviction relief that 

“Due to intoxication, [he] does not remember much of the 

accident.” Therefore, Gutierrez could be charged with and 

convicted of aggravated assault for recklessly causing 

physical injury to the victim while using a dangerous 

instrument. See A.R.S. § § 13-1203(A)(1) (2010) (assault); 

13-1204(A)(2) (2010) (aggravated assault using a dangerous 

instrument). That the victim’s vehicle hit Gutierrez is of no 

matter, Gutierrez caused the collision.

(Bates No. 77). 

The undersigned has reviewed the transcript from the change of plea hearing. 

(Bates No. 78-95).4 Petitioner admitted that he made a “reckless turn using a car, a 

dangerous instrument, that caused a broken arm to a 13-year-old child.” (Bates No. 89). 

Petitioner stated to the judge that “if you find it in your heart to forgive me, that nobody 

was killed in this accident, and hopefully, I can get some [alcohol treatment] when I go to 

the Department of Corrections . . . .” (Bates No. 92).

The undersigned has also reviewed the police report attached to the Petition (Doc. 

 

4 The transcript is filed at Doc. 18-1.
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1 at 45). The report reflects that Petitioner caused the vehicle collision, stating that 

Petitioner “failed to yield to the right away.” (Id.). In addition, the report states that

Petitioner “was processed for DUI.” (Id.). The undersigned finds that Petitioner has 

failed to demonstrate that there is a reasonable probability that, but for counsel’s alleged 

error in failing to obtain/provide to Petitioner a copy of the police report, 

he would not have pleaded guilty and would have insisted on going to trial.

The undersigned finds that the Arizona Court of Appeals’ denial of Petitioner’s 

ineffectiveness of counsel claim was a reasonable application of Strickland. The record 

shows that the state courts’ decision was not “contrary to, or involved an unreasonable 

application of, clearly established Federal law,” or was based on an “unreasonable 

determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d). It is

recommended that the Court deny Ground One of the Petition.

B. Grounds Two, Three, and Four Are Procedurally Defaulted

1. Grounds Two and Three: Allegations that the Trial Court and 

Prosecutor Lied About the Evidence in Order to Coerce Petitioner 

to Plead Guilty 

In Ground Two, Petitioner asserts that the “trial court impermissibly coerced a 

guilty plea by lying about the evidence involved in this case, to get Petitioner to plead 

guilty.” (Doc. 1 at 7). In Ground Three, Petitioner asserts that “the state lied about the 

evidence in this case to coerce a guilty plea from Petitioner, prosecutorial misconduct.” 

(Id. at 8). As Respondents correctly explain (Doc. 12 at 10-11), Petitioner failed to 

present Grounds Two and Three to the trial court and Arizona Court of Appeals. 

Grounds Two and Three are therefore unexhausted. Arizona Rules of Criminal 

Procedure 32.2(b) and 32.4(a), do not bar untimely claims that fall within the following 

categories:

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 
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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.

Ariz. R. Crim. P. 32.1(d) through (h). Petitioner does not assert that any of the above 

exceptions apply to Grounds Two and Three. Nor does it appear that any of the 

exceptions would apply. Therefore, the undersigned finds that Grounds Two and Three 

are procedurally defaulted. See Beaty, 303 F.3d at 987 (a claim is procedurally defaulted 

“if the petitioner failed to exhaust state remedies and the court to which the petitioner 

would be required to present his claims in order to meet the requirement would now find 

the claims procedurally barred”) (quoting Coleman, 501 U.S. at 735 n.1)). 

2. Ground Four: Alleged Ineffective Assistance of PCR Counsel

In this case, because Petitioner pled guilty, he waived his right under Arizona law 

to a direct appeal. See ARIZ. REV. STAT. § 13–4033(B). A plea-convicted defendant, 

however, is entitled to an of-right post-conviction relief (“PCR”) proceeding. See Ariz. 

R. Crim. P. 32.1 and 32.4. In Ground Four, Petitioner argues that his appointed PCR 

counsel was constitutionally ineffective for failing to raise in his PCR proceeding the 
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claims contained in Grounds Two and Three. (Doc. 1 at 9). Based on the general rule 

that defendants have no constitutional right to effective assistance of PCR counsel,

Respondents contend that Ground Four is not a cognizable habeas claim. (Doc. 12 at 11) 

(citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)). 

In Halbert v. Michigan, 545 U.S. 605, 610 (2005), the Supreme Court stated that 

“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.” Halbert v. 

Michigan, 545 U.S. 605, 610 (2005). In Summers v. Schriro, the Ninth Circuit Court of 

Appeals discussed Arizona case law holding that plea-convicted defendants who seek ofright post-conviction review are “constitutionally entitled to the effective assistance of 

counsel.” 481 F.3d 710, 716 (9th Cir. 2007) (quoting State v. Pruett, 912 P.2d 1357, 

1359-60 (Ariz. Ct. App. 1995). Based on Arizona case law, the Ninth Circuit concluded 

that an of-right PCR proceeding is a form of direct review for purposes of determining 

when the one-year limitations period commences for filing a federal habeas petition. Id. 

(citing 28 U.S.C. § 2244(d)(1)(A)). The Ninth Circuit explained that “[t]reating the Rule 

32 of-right proceeding as a form of direct review helps make the Arizona Constitution’s 

guarantee of ‘the right to appeal in all cases’ a functioning reality rather than a mere form 

of words.” Id. at 716-17. In a number of cases in the District of Arizona, it has been 

concluded that a plea-convicted Arizona defendant has a constitutional right to counsel in 

an of-right PCR proceeding. See, e.g., Ree v. Ryan, CV-13-00746-TUC-RM(LAB), 2015 

WL 3889360, at *1 (D. Ariz. June 23, 2015); Ramon v. Ryan, 2010 WL 3564819, at *11 

(D. Ariz. July 23, 2010) (Arizona pleading defendant had a right to counsel in his Rule 32 

of-right post conviction proceeding); Walker v. Ryan, 2015 WL 10575864, at *5 n.4 (D. 

Ariz. Oct. 21, 2015) report and recommendation adopted, CV-15-00072-PHXROS(BSB), 2016 WL 1268487 (D. Ariz. Mar. 31, 2016); and White v. Ryan, CV-15-

2482-PHX-JJT, 2016 WL 4650002, at *14 (D. Ariz. May 2, 2016), report and 

recommendation adopted, CV-15-02482-PHX-JJT, 2016 WL 4592083 (D. Ariz. Sept. 2, 

2016).
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Based on the above case law, the undersigned finds that the claim presented in 

Ground Four is cognizable in this proceeding. However, Petitioner has not presented the 

claim to the state court in a subsequent PCR proceeding. See Osterkamp v. Browning, 

250 P.3d 551, 555 (Ariz. Ct. App. 2011) (“[T]he pleading defendant must be given the 

opportunity to assert a claim of ineffective assistance of initial Rule 32 counsel; the 

obvious method is by means of a second petition for post-conviction relief.”) (internal 

quotation marks and citation omitted). Ground Four is therefore unexhausted. Moreover, 

Petitioner would be precluded by adequate and independent state procedural rules from 

raising Ground Four in a successive PCR proceeding. See Ariz. R. Crim. P. 32.4(a); 

Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997). The undersigned finds that 

Ground Four is procedurally defaulted.

3. Petitioner’s Procedural Defaults Are Not Excused

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

reviewed if 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). 

i. Cause and Prejudice Exception 

a. Petitioner’s Status as a Pro Se Litigant Does Not

Establish Cause

To the extent Petitioner may argue that his status as a pro se litigant establishes 

“cause” for his procedural defaults, such argument would be without merit. See Hughes

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

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

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

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

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

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

862 F.2d 1376, 1381 (9th Cir. 1988) (illiterate petitioner with a mental condition who 
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relied upon incompetent “jailhouse lawyers” failed to show cause).

b. Martinez Does Not Excuse the Procedural Defaults

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

“inadequate assistance of counsel at initial-review collateral proceedings may establish 

cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” 132 

S.Ct. at 1315. Under Martinez, “cause” to excuse a petitioner’s procedural default may

be found where:

(1) the claim of “ineffective assistance of trial counsel” was

a “substantial” claim; (2) the “cause” consisted of there

being “no counsel” or only “ineffective” counsel during the

state collateral review proceeding; (3) the state collateral

review proceeding was the “initial” review proceeding in

respect to the “ineffective-assistance-of-trial-counsel claim”;

and (4) state law requires that an “ineffective assistance of

trial counsel [claim] . . . be raised in an initial-review

collateral proceeding.”

Trevino v. Thaler, 133 S.Ct. 1911, 1918 (2013) (quoting Martinez, 132 S.Ct. at 1318–19,

1320–21) (alterations in original). 

As previously discussed, in Arizona, an “of-right” PCR proceeding is not a 

“collateral” proceeding, but is the functional equivalent of a direct appeal. See

Summers, 481 F.3d at 716-17; State v. Petty, 238 P.3d 637, 640 (Ariz. Ct. App. 2010) (a 

pleading defendant is “constitutionally entitled to the effective assistance of counsel on

his first [of-right] petition for post-conviction relief, the counterpart of a direct appeal”) 

(citation omitted). Because Martinez does not apply to direct appeals, Martinez does 

not apply to the procedural default analysis in this case. See White, 2016 WL 4650002, at 

*14 (concluding that “Martinez has no application to evaluating the performance of 

Petitioner’s counsel in [of-right PCR] proceeding”).

Moreover, because Petitioner has not exhausted the claim in Ground Four that his 

appointed of-right PCR counsel was ineffective, Petitioner cannot use such alleged 

ineffectiveness to establish cause for his procedural defaults of Grounds Two and Three. 

See Tacho, 862 F.2d at 1381 (“To the extent that petitioner is alleging ineffective 
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assistance of appellate counsel as cause for the default, the exhaustion doctrine requires 

him to first raise this ineffectiveness claim as a separate claim in state court. . . 

. Petitioner did not do so, and we may not now entertain the claim as ‘cause’ for 

default.”) (emphasis in original) (citations omitted); Cockett v. Ray, 333 F.3d 938, 943 

(9th Cir. 2003) (“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.”). 

For the above reasons, the undersigned finds that Petitioner has not satisfied the 

“cause and prejudice” exception to excuse the procedural defaults of Grounds Two, 

Three, and Four. See Smith v. Murray, 477 U.S. 527, 533 (1986) (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).

ii. Fundamental Miscarriage of Justice Exception

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

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

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

satisfied that the trial was free of nonharmless constitutional error.’” McQuiggin v.

Perkins, 133 S. Ct. 1924, 1936 (2013). “To be credible, such a claim requires petitioner

to support his allegations of constitutional error with new reliable evidence–whether it

be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence.” Schlup, 513 U.S. at 324. Because of “the rarity of such evidence,

in virtually every case, the allegation of actual innocence has been summarily rejected.”

Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thomas, 523

U.S. 538, 559 (1998)). Petitioner does not allege that he is actually innocent and 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. 

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Petitioner’s procedurally defaulted claims. It is recommended that the Court dismiss 

Grounds Two, Three, and Four with prejudice. 

IV. CONCLUSION

Based on the foregoing, 

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

DISMISSED WITH PREJUDICE. 

IT IS FURTHER RECOMMENDED that a certificate of appealability and leave 

to proceed in forma pauperis on appeal be denied because dismissal of Grounds Two, 

Three, and Four are justified by a plain procedural bar and Petitioner has not made a 

substantial showing of the denial of a constitutional right as to Ground One. 

This Report and 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 Report and 

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 10th day of April, 2017. 
ATTACHMENT 1