State Response To Copeland

Case 2:13-cv-02278-PGR Document 15 Filed 06/27/14 Page 1 of 38
1 THOMAS C. HORNE
ATTORNEY GENERAL
(FIRM STATE BAR NO. 14000)
2
W. SCOTT SIMON
3 ASSISTANT ATTORNEY GENERAL
CRIMINAL APPEALS SECTION
4 1275 WEST WASHINGTON
PHOENIX, ARIZONA 850072997
5 TELEPHONE: (602) 5424686
CADocket@azag.gov
(STATE BAR NUMBER 025230)
6
ATTORNEYS FOR RESPONDENTS
7
8 UNITED STATES DISTRICT COURT
9 DISTRICT OF ARIZONA
10
Alfred Copeland, CV 132278PHXPGR (JFM)
11
Petitioner, LIMITED ANSWER TO
12 PETITION FOR
vs WRIT OF HABEAS CORPUS
13
Charles L. Ryan, et al.,
14
Respondents.
15
16 Respondents, pursuant to Rule 5 of the Rules Governing 2254 Cases, and
17 this Courts order of March 31, 2014, hereby file their limited answer to the
18 petition for writ of habeas corpus. For the reasons set forth in the following
19 Memorandum of Points and Authorities, Respondents respectfully request that the
20 petition be denied and dismissed with prejudice.
21 DATED THIS 27th day of June 2014.
22
Respectfully Submitted,
23
24
/s/
25 W. Scott Simon
26 Assistant Attorney General
27 Attorney for Respondents
28
1 MEMORANDUM OF POINTS AND AUTHORITIES1

2 I. FACTUAL AND PROCEDURAL BACKGROUND.
3 A. Background facts and trial.
4 On February 11, 2002, the State of Arizona indicted Petitioner on the
5 following: (1) three counts of sexual abuse, class three felonies and dangerous
6 crimes against children; (2) one count of sexual conduct with a minor, a class two
7 felony and dangerous crime against children; (3) two counts of sexual exploitation
8 of a minor, class two felonies and dangerous crimes against children; (4) one count
9 of incest, a class four felony; and (5) three counts of furnishing obscene or harmful
10 items to minors, class four felonies. (Exhibit X.)
11 Petitioners offenses spanned a nearly 20year time period, and included six
12 victims: L.P., Petitioners granddaughter; C.G. and C.U., Petitioners stepdaughters;
13
T.B. and D.P., Petitioners daughters; and K.C., Petitioners grandson. The facts
14
and evidence supporting each count presented at trial, viewed in the light most
15
favorable to upholding the verdicts and sentences imposed,2 reflects the following:
16
L.P. was the named victim in Count 1 (sexual abuse) and Count 2
17
(molestation of a child). (Exhibit X.) L.P. was 8yearsold when the incidents
18
took place. (Exhibit C, at 127.) Between August 17, 2001 and August 24, 2001,
19
K.P., Petitioners grandson, witnessed Petitioner fondle L.P.s breasts and genitals
20
over her clothes while she slept. (Id. at 98.) K.P. had a clear view of L.P. while
21
Petitioner fondled her. (Id. at 97.)
22
________________________
23
1
As allowed by this Courts March 31, 2014, order, Respondents have limited their
24 answer to affirmative defenses and have not addressed the merits of the
corresponding claims. In the event that this Court rejects Respondents affirmative
25 defenses regarding one or more claims, Respondents respectfully request leave to
file a supplemental answer to address the merits of any such claim and to file
26 additional exhibits.
27 2
See Wright v. West, 505 U.S. 277, 296 (1992); Jackson v. Virginia, 443 U.S. 307,
319 (1979).
28
2
1 L.P. was also the named victim in Count 3 (sexual conduct with a minor).
2 (Exhibit X.) On or between February 1 and August 24, 2001, Petitioner fondled
3 her genital area with his hand while she slept. (Exhibit C, at 136.) L.P. testified
4 that Petitioner touched her on her private[s]. (Id., at 134, 136.) When asked
5 whether, anything ever happened to the inside of [her] private[]s, she responded,
6 I dont remember. (Id. at 139.) She further stated that she feared Petitioner. (Id.
7 at 140.)
8 In support of L.P.s testimony, the state presented the testimony of Wendy
9 Dutton, a forensic interviewer. (Id. at 15859.) Ms. Dutton interviewed L.P on
10 two occasions, August 30, 2001 and March 15, 2002. (Id. at 17374.) During the
11 March 15, 2002, interview, L.P. detailed an incident that took place at Petitioners
12 home when she was in the first grade. (Id.) During the incident, Petitioner
13 touched her in the genital area with his hand, and she felt a pinching sensation.
14 (Id.)
15 Dr. Catherine Coffman, a pediatrician, who examined L.P. within 6 months
16 of the incident, subsequently testified that, in her expert opinion, L.P.s hymen was
17 abnormal because there wasnt very much of it. (Exhibit D, at 313.)
18 Comparing a diagram of a hymen to the face of a clock, Dr. Coffman stated that
19 Lauras hymen was missing tissue from the 2 oclock to the 4 oclock positions.
20 (Id. at 13.) In addition, from the 4 oclock to the 10 oclock positions, the tissue
21 was very narrow. (Id.) L.P. had no history of accidental genital trauma when Dr.
22 Coffman examined her. (Id. at 6.) According to Dr. Coffman, because a large area
23 of L.P.s hymen was abnormal, the trauma was likely the result of repeated trauma.
24 (Id. at 15.) In her opinion, the injury was caused by something penetrating through
25
the hymen. (Id.) In Dr. Coffmans opinion, the trauma to L.Ps hymen was not
26
caused by an accidental occurrence such as a straddle injury. (Id. at 17.) After
27
assessing the injury to L.P.s hymen, Dr. Coffman felt that the injuries were
28
3
1 consistent with the history of abuse that was provided to her through investigative
2 authorities. (Id. at 19.)
3 C.G. was the named victim in Count 4. (Exhibit X; Exhibit D, at 25.) C.G.
4 was 11yearsold when she moved into Petitioners home in 1972. (Id. at 28.)
5 Petitioner sexually abused C.G. until she turned 14. (Id. at 43.) C.G. reported the
6 abuse to police in 1975 to no avail. (Id. at 36, 38, 40.) C.G. thereafter ran away
7 and ended up in Hollywood, California, at age 15 and 2 months. (Id. at 44.) While
8 in Hollywood, C.G. met two men who took pictures of a sexual encounter they had
9 with her. (Id. at 45.) When C.G. was between 15 and 16yearsold she returned to
10 Phoenix with these four pictures. (Id.) Petitioner took the four pictures from C.G.
11 and she could not get them back from him. (Id. at 4546.) Petitioner told C.G. that
12 he ejaculated often to the photographs. (Id.) Petitioner personally photographed
13 C.G. in sexually explicit positions when she was 15. (Id. at 4647.) In August of
14 2001, T.B., C.G.s halfsister, discovered all of the photos that Petitioner took of
15 C.G. in a briefcase under Petitioners bed. (Exhibit E, at 47.)
16 T.B. was the named victim in Count 5 (sexual exploitation of a minor).
17 (Exhibit X.) T.B. was born in 1974, and when she was between 12 and
18 13yearsold, Petitioner took sexually explicit photos of her. (Exhibit E, at 3.)
19 Petitioner made her pose in the nude and lie on his bed with her legs open and
20 inner vagina exposed. (Id.)
21 D.P. was the victim named in Count 6 (incest) (Exhibit X; Exhibit D, at
22 121.) The evidence reflected that, in the summer of 2001, Petitioner engaged in
23 sexual intercourse with D.P. (Id. at 121.)
24 C.U. was the named victim in Counts 7 and 8 (sexual abuse). (Exhibit X).
25
C.U. gave birth to her son on August 1, 1983. (Exhibit D, at 74.) At the time, C.U.
26
was living in Petitioners home, and Petitioner offered to purchase things for her
27
child in exchange for sex. (Id. at 75.) When C.U. refused, Petitioner grabbed her
28
4
1 breasts and vagina, against her will. (Id.)

2 K.C. was the victim named in Count 10 (furnishing obscene or harmful
3 items to minors). (Exhibit X.) When K.C. was 8yearsold, Petitioner showed
4 him a pornographic cartoon in the living room of his home. (Exhibit C, at 105.)
5 The cartoon portrayed images of breasts, nude women, and women engaging in
6 oral sex. (Id. at 10506.)
7 Regarding Count 11 (furnishing obscene or harmful items to minors), the
8 evidence reflected that Petitioner showed T.B. pornography on frequent
9 occasions. (Exhibit D, at 153.) When T.B. was 12 or 13yearsold, Petitioner
10 made her watch the pornography and perform on him what they were doing in the
11 videos. (Id. at 154.)
12 A jury acquitted Petitioner on one count of furnishing obscene or harmful
13 items to minors, but convicted him on the remaining counts. (Exhibit H, at 16,
14 14.) The trial court thereafter sentenced Petitioner to the following terms of
15 imprisonment: an aggravated term of 7.5 years for count 1 (sexual abuse); an
16 aggravated term of 24 years for count 2 (molestation of a child); a life sentence for
17 count 3 (sexual conduct with a minor); an aggravated term of 24 years for count 4
18 (sexual exploitation of a minor); an aggravated term of 24 years for count 5 (sexual
19 exploitation of a minor); an aggravated term of 3 years for count 6 (incest); an
20 aggravated term of 2 years for count 7 (sexual abuse); an aggravated term of 2
21 years for count 8 (sexual abuse); an aggravated term of 3 years for count 10
22 (furnishing obscene or harmful materials to minors); and an aggravated term of 3
23 years for count 11 (furnishing obscene or harmful materials to minors). (Id., at
24 1517.)
25
B. Direct appeal.
26
After being convicted, Petitioner filed a direct appeal. Petitioner raised one
27
claim: the state presented insufficient evidence supporting Count 3 (sexual conduct
28
5
1 with a minor (L.P.) and Count 11 (furnishing obscene or harmful materials to

2 minors). (Exhibit I.) Specifically, Petitioner argued that there was insufficient
3 evidence supporting his conviction for sexual conduct with his minor
4 granddaughter (Count 3) because the state failed to prove that he penetrated L.P.s
5 vagina. (Id. at 11.) Regarding Count 11, Petitioner argued that insufficient
6 evidence supported the verdict because [there was] no description of the content
7 of the movies or of anything meeting the definition of harmful to minors. (Id. at
8 13.)
9 On January 13, 2004, the Arizona Court of Appeals affirmed the convictions
10 and sentences, finding that sufficient evidence supported the jurys verdicts.
11 (Exhibit J.) The court reasoned that, regarding Count 3, the medical testimony,
12 coupled with L.P.s interview that detailed Petitioners actions, allowed the jury to
13 reasonably infer that [Petitioner] had penetrated L.P.s vulva on the occasion
14 described by L.P. (Id. at 5.) Regarding Count 11, the court concluded that T.B.s
15 testimony, including the description of the video and the incident as a whole,
16 supported a conclusion that the video at issue depicted sexual scenes that were
17 harmful to minors. (Id. at 6.)
18 Petitioner thereafter filed a petition for review in the Arizona Supreme Court
19 (Exhibit K), which was denied on June 2, 2004. (Exhibit J.)
20 C. Postconviction proceedings.
21 On April 23, 2008, Petitioner filed a pro se notice of postconviction relief
22 in the state trial court. (Exhibit L.) In the notice, Petitioner claimed newly
23 discovered material facts that established his innocence, but he failed to
24 substantiate his claim with any argument, newly discovered facts, or evidence.
25
(Id.; Exhibit M.)
26
On May 5, 2008, the court dismissed the notice as untimely, pursuant to
27
Rule 32.4(a) of the Arizona Rules of Criminal Procedure. (Exhibit M.)
28
6
1 Petitioner thereafter filed a petition for review in the Arizona Court of

2 Appeals. Petitioner argued that: (1) newly discovered evidence established his
3 innocence on Count 3; (2) trial defense counsel rendered infective assistance by
4 failing to investigate and call witnesses; (3) his convictions were obtained in
5 violation of the statute of limitations as set forth in the Arizona statutes; and (4) his
6 conviction on Counts 7 and 8 were the result of perjured testimony. (Exhibit N.)
7 On September 1, 2009, the Arizona Court of Appeals summarily denied review.
8 (Exhibit O.)
9 Petitioner, proceeding pro se, thereafter filed a second, successive notice of
10 postconviction relief, and an accompanying petition for postconviction relief, on
11 January 5, 2010, and requested that the state court appoint counsel. (Exhibit P;
12 Exhibit Q.) In the petition, Petitioner raised the following claims for relief: (1)
13 ineffective assistance of trial counsel; (2) the state and police engaged in
14 misconduct including the failure to disclose evidence and accusations that the
15 police planted evidence to frame Petitioner; (3) his convictions were obtained with
16 an insufficient showing of evidence; (4) newly discovered evidence established his
17 innocence; (5) the state coerced testimony; (6) the state court lacked jurisdiction
18 regarding counts 7 and 8; the convictions on Counts 6 and 11 were obtained in
19 violation of the statute of limitations as set forth in the Arizona statutes; (6)
20 detectives failed to discover evidence and planted evidence; and (7) ineffective
21 assistance for failure to present witness testimony. (Id.) In support of his petition,
22 Petitioner presented affidavits from two victims claiming that they gave false
23 testimony because of state coercion. (Id.)
24 On March 16, 2010, the state trial court granted Petitioners request to
25
appoint counsel. (Exhibit R.) Appointed counsel thereafter filed a notice of
26
completion of record, avowing that, after reviewing the record, she was unable to
27
find a colorable claim. (Exhibit S.)
28
7
1 Petitioner thereafter filed a pro se successive notice of postconviction

2 relief, reasserting the claims presented in his January 5, 2010 petition. (Exhibit
3 T.)
4 On February 10, 2011, the state trial court dismissed the postconviction
5 proceeding as untimely and found that several claims were precluded under
6 Arizona law. (Exhibit U.) Specifically, the court made the following findings: (1)
7 the post-conviction proceeding had been initiated in an untimely manner; (2)
8 Petitioners ineffective assistance of counsel claims were precluded as untimely
9 pursuant to Arizona Rule of Criminal Procedure 32.4(a); (3) Petitioners claim that
10 the state and police engaged in misconduct, including failure to disclose evidence
11 and planting evidence, was untimely under Arizona Rule of Criminal Procedure
12 32.4(a) and precluded pursuant to rule 32.2(a) because it could have been raised on
13 direct appeal; (4) Petitioners claim that there was insufficient evidence to support
14 his conviction was untimely under Arizona Rules of Criminal Procedure 32.4(a)
15 and precluded under Rule 32.2(a) because it could have been raised on direct
16 appeal; (5) regarding Petitioners fourth claim, that newly discovered evidence
17 would alter the verdict or sentence, the court found that Petitioner had failed to
18 exercise reasonable diligence, and thus, the claim was precluded as untimely; and
19 (6) Petitioner had failed to present any claim that could be addressed in an
20 untimely and successive petition for postconviction relief. (Id.)
21 Petitioner thereafter filed a petition for review in the Arizona Court of
22 Appeals. (Exhibit V.) Petitioner raised the following claims: (1) the state trial
23 court erred in dismissing his ineffective assistance of counsel claim as untimely
24 without holding an evidentiary hearing; (2) the state obtained an indictment based
25
on evidence that [did] not . . . exist and was not disclosed properly under the
26
Arizona Rules of Criminal Procedure; (3) the state trial court erred in determining
27
that Petitioner failed to exercise due diligence in presenting his newly discovered
28
8
1 evidence. (Id.) The Arizona Court of Appeals summarily denied review on

2 January 4, 2013. (Exhibit W.)
3 D. Federal habeas proceedings.
4 On March 31, 2014, Petitioner filed a petition for writ of habeas corpus.
5 (Dkt. 8.) Petitioner raises seven grounds for relief:
6 Ground One: (1) trial counsel rendered ineffective assistance by
7 failing to: (i) challenge the indictment, (ii) prepare for trial and present
exculpatory evidence, and (iii) challenge the sentence imposed on
8 Counts 3 and 5; (2) appellate counsel rendered ineffective assistance
9 due to a conflict of interest; and (3) postconviction counsel rendered
ineffective assistance by failing to present the aforementioned claims
10 and Petitioners claim of newly discovered evidence.
11
Ground Two: Petitioner is actually innocent of the conviction in
12 Ground 3 as set forth in the indictment and trial counsel rendered
13 ineffective assistance for failing to secure the statement of a witness.
14 Ground Three: There was insufficient evidence presented to support
15 the convictions in Counts 7 and 8 because, at the time the crimes were
committed, Petitioners residence was in Texas.
16
17 Ground Four: Petitioners convictions and sentences in Counts 5 and
11 were obtained in violation of the statute of limitations as set forth
18 in the Arizona statutes.
19
Ground Five: trial counsel rendered ineffective assistance by failing to
20 adequately crossexamine a state witness and present statements from
21 a victim present in a police report.
22 Ground Six: the trial court erred when it failed to issue a jury
23 instruction regarding an allegedly improper statement by the
prosecutor.
24
25 Ground Seven: The state trial court lacked jurisdiction to try
Petitioner.
26
II. RULE 5 STATEMENT.
27
Pursuant to Rule 5 of the Rules Governing 2254 cases, Respondents have
28
9
1 copied and submitted, as exhibits, the following portions of the state court record:
2 all relevant pleadings and court orders from Petitioners trial and direct appeal
3 (Exhibits I-K, X-Y), and all relevant portions of Petitioners state postconviction
4 and federal habeas proceedings. (Exhibits L-W.) Additionally, Respondents have
5 attached the following Reporters Transcripts: 08/08/2002, 09/17/2002,
6 09/18/2002, 09/19/2002, 09/23/2002, 09/24/2002, 09/25/2002, 11/15/2002.
7 (Exhibits A-H.) Respondents will file additional portions of the state court record
8 should this Court deem it necessary.
9 III. THE PETITION IS UNTIMELY UNDER AEDPA.
10 A. Relevant legal principles.
11 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
12 imposes a 1year statute of limitations for a state prisoner to file a federal petition
13 for writ of habeas corpus. 28 U.S.C. 2244(d). The statute of limitations applies
14 to all federal petitions files after AEDPAs effective date, April 24, 1996. Lindh v.
15 Murphy, 521 U.S. 320, 33637 (1997). Whether a petition is barred by the statute
16 of limitations is a threshold issue that must be resolved before considering other
17 procedural issues or the merits of individual claims. See White v. Klitzkie, 281 F.3d
18
920, 92122 (9th Cir. 2002).
19
AEDPAs 1year statute of limitations begins to run on the date on which the
20
judgment against the petitioner became final either by the conclusion of direct
21
review or the expiration of the time available to seek such review. 28 U.S.C.
22
2244(d)(1)(A); Jimenez v. Quarterman, 129 S. Ct. 681, 685 (2009); Hemmerle v.
23
Schriro, 495 F.3d 1069, 107374 (9th Cir. 2007) (noting that direct appeal is final
24
upon expiration of time for seeking further appellate review).
25
Section 2244(d)(2) tolls the limitations period during the time that a
26
properly filed application for State postconviction or other collateral review . . . is
27
pending. 28 U.S.C. 2244(d)(2); see also Isley v. Ariz. Dept of Corr., 383 F.3d
28
10
1 1054, 1056 (9th Cir. 2004) (filing of notice of postconviction relief in Arizona
2 tolls AEDPA statute of limitations); Lott v. Mueller, 304 F.3d 918, 921 (9th Cir.
3 2002). A state petition that is not filed within the states required time limit,
4 however, is not properly filed, and therefore, the petitioner is not entitled to
5 statutory tolling. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (When a post
6 conviction petition is untimely under state law, that [is] the end of the matter for
7 purposes of 2244(d)(2).); Allen v. Siebert, 552 U.S. 3, 67 (2007) (finding that
8 inmates untimely state postconviction petition was not properly filed under
9 AEDPA tolling provision). Thus, AEDPA grants a criminal defendant 1year from
10 the conclusion of his direct appeal, minus time spent litigating a properly filed
11 postconviction claim, to file a federal habeas corpus petition.
12 B. The pending petition is untimely.
13 (1) Petitioners conviction became final on September 2,
14 2004.
15 In the present case, the Arizona Supreme Court denied Petitioners petition
16 for review on direct appeal on June 2, 2004. (Exhibit J.) Petitioners conviction
17 thus became final 90 days later on September 2, 2004, when the period for filing a
18 petition for writ of certiorari with the United States Supreme Court expired. See
19 Clay v. United States, 537 U.S. 522, 52728 n.3 (2003) (collecting cases).
20 AEDPAs one 1year statute of limitations began to run the next day, and thus,
21 Petitioner had until September 3, 2005, in which to file his habeas petition.
22 Petitioner, however, did not file his petition until November 7, 2013. As such,
23 absent statutory or equitable tolling, the pending petition is untimely.
24 (2) Statutory tolling does not render the pending petition
timely.
25
26 Statutory tolling does not render the pending petition timely. Initially, no
27 tolling occurred between September 3, 2004 and September 3, 2005 because

28 Petitioner had nothing pending in state or federal court during that period.
11
1 Petitioners initial notice of postconviction relief, which was not filed until April
2 23, 2008, nearly 3 years after the expiration of AEDPAs statute of limitations, did
3 not revive or otherwise restart the thenexpired limitations period. See Ferguson v.
4 Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (announcing that, [l]ike the
5 Eleventh Circuit, we hold that section 2244(d) does not permit the reinitiation of
6 the limitations period that has ended before the state petition was filed) (citing
7 Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001)); Jimenez v. Rice, 276 F.3d
8 478, 482 (9th Cir. 2001) (holding that the federal habeas petitioners filing of a
9 state postconviction relief petition well after the AEDPA statute of limitations
10 ended constituted a delay that resulted in an absolute time bar to refiling after his
11 state claims were exhausted).
12 Regardless, Petitioners initial and successive postconviction proceedings
13 could not have tolled the statute of limitations because the state court ultimately
14 dismissed both proceedings as untimely, pursuant to Rule 32.4(a) of the Arizona
15 Rules of Criminal Procedure. A state petition that is not filed within the states
16 required time limit is not properly filed, and does not serve to toll the statute of
17 limitations. See Siebert, 552 U.S. at 7 (inmates untimely state postconviction
18 petition was not properly filed under AEDPA tolling provision); see also Pace,
19 544 U.S. 414 (When a postconviction petition is untimely under state law, that
20 [is] the end of the matter for purposes of 2244(d)(2).).
21 Statutory tolling does not render the pending petition timely.
22 (3) Petitioner is not entitled to equitable tolling.
23 Petitioner is not entitled to equitable tolling. Equitable tolling is a rare
24 remedy to be applied in unusual circumstances, not a cureall for an entirely
25
common state of affairs. Wallace v. Kato, 549 U.S. 384, 396 (2007). A petitioner
26
must prove his entitlement to equitable tolling. See Rasberry v. Garcia, 448 F.3d
27
1150, 1153 (9th Cir. 2006); Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005).
28
12
1 Equitable tolling is unavailable in most cases. Miranda v. Castro, 292 F.3d

2 1063, 1066 (9th Cir. 2002) (quoting Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.
3 1999)). Indeed, the threshold necessary to trigger equitable tolling [under
4 AEDPA] is very high, lest the exceptions swallow the rule. Miranda, 292 F.3d at
5 1066 (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)); see
6 also Shannon v. Newland, 410 F.3d 1083, 1090 (9th Cir. 2005) (same).
7 To be entitled to equitable tolling, [the prisoner] must show (1) that he has
8 been pursuing his rights diligently; and (2) that some extraordinary circumstance
9 stood in his way and prevented timely filing. Lawrence v. Florida, 549 U. S. 327,
10 336 (2007) (emphasis added). The word prevent requires the petitioner to
11 demonstrate a causal relationship between the extraordinary circumstance on
12 which the claim for equitable tolling rests and the lateness of his filing, a
13 demonstration that cannot be made if the petitioner, acting with reasonable
14 diligence, could have filed on time notwithstanding the extraordinary
15 circumstances. Valverde v. Stinson, 224 F.3d 129, 134 (2nd Cir. 2000); see also
16 Bryant v. Arizona Atty Gen. 499 F.3d 1056, 1061 (9th Cir. 2007) (The prisoner
17 must show that the extraordinary circumstances were the cause of his
18 untimeliness.). Indeed, equitable tolling is not even a possibility until a
19 petitioner submits proof that external forces . . . accounted for the failure to file a
20 timely petition. Smith v. Ratelle, 323 F.3d 813, 821 (9th Cir. 2003) (emphasis
21 added).
22
Here, Petitioner has not proffered any extraordinary circumstance that would
23
justify equitable tolling, let alone demonstrate that any external impediment
24
prevented him from diligently and timely pursuing his rights. Petitioners pro se
25
status, any lack of language skills, and unfamiliarity with the law do not constitute
26
grounds for failure to comply with 28 U.S.C. 2244(d)s 1year statute of
27
limitations. See Rasberry, 448 F.3d at 1154. While pro se pleadings are to be
28
13
1 liberally construed, the policy of liberal construction cannot plausibly justify a

2 partys failure to file a habeas petition on time. See Voravongsa v. Wall, 349 F.3d 1,
3 8 (1st Cir. 2003).
4 Accordingly, the pending petition is time barred for the following reasons:
5 (1) Petitioner filed his pending petition over 8years after the expiration of the
6 applicable statutory tolling period; (2) statutory tolling does not render the petition
7 timely; and (3) Petitioner has not argued, let alone demonstrated that he is entitled
8 to the extraordinary relief of equitable tolling.
9 IV. GROUND ONE, SUBCLAIM (E), GROUND TWO, GROUND FOUR, AND
10 GROUND SEVEN ARE NOT COGNIZABLE IN FEDERAL HABEAS
PROCEEDINGS.
11
A. Ground One, Subclaim (e).
12
In Ground One, subclaim (e), Petitioner argues that post-conviction counsel
13
rendered ineffective assistance by filing a notice of completion of record and by
14
failing to raise a claim of newly discovered evidence. (Dkt. 1, at 6.) 28 U.S.C.
15
2254(i), however, expressly states that [t]he ineffectiveness or incompetence of
16
counsel during Federal or State collateral post-conviction proceedings shall not be
17
a ground for relief in a proceeding arising under section 2254. The United States
18
Supreme Court has likewise held that [t]here is no constitutional right to an
19
attorney in state post-conviction proceedings . . . . Consequently, a petitioner
20
cannot claim constitutionally ineffective assistance of counsel in such
21
proceedings. Coleman v. Thompson, 501 U.S. 722, 752 (1991); see also Bonin v.
22
Jeffers, 999 F.2d 425, 430 (9th Cir. 1993) (the protections of the Sixth
23
Amendment right to counsel do not extend to either state collateral proceedings or
24
federal habeas corpus proceedings.). Consequently, Petitioners claim of
25
ineffective assistance of counsel during state post-conviction relief proceedings
26
does not state a cognizable claim for federal habeas relief.
27
28
14
1 B. Ground Two.
2 To the extent Petitioner appears to argue in Ground Two that he actually
3 innocent of the conviction proven pursuant to Count 3 of the state indictment, this
4 claim is not cognizable on federal habeas review. (Dkt. 1, at 7.) The United States
5 Supreme Court has never recognized factual innocence as a free-standing
6 constitutional claim, but rather indicated it is not a free-standing constitutional
7 claim. Herrera v. Collins, 506 U.S. 390, 400 (1993); Coley v. Gonzales, 55 F.3d
8 1385, 1387 (9th Cir. 1995) (Coley seems to be making the claim that he is
9 factually innocentbut that claim alone is not reviewable on habeas.).
10 Accordingly, this claim must be dismissed with prejudice.
11 C. Ground Four.
12 In Ground Four, Petitioner argues that his convictions and sentences in
13 Counts 5 and 11 as set forth in the indictment were obtained in violation of the
14 statute of limitations as set forth in the Arizona statutes. This claim, however, must
15 be dismissed because it is not cognizable in federal habeas corpus proceedings.
16 A federal habeas court is limited to deciding whether a conviction violated
17 the Constitution or laws or treaties of the United States. 28 U.S.C. 2254(a).
18 Habeas courts have no jurisdiction to decide that a particular state sentence is
19 consistent with state law. See Estelle v. McGuire, 502 U.S. 62, 6768 (1991) ([I]t
20 is not the province of a federal habeas court to reexamine statecourt
21 determinations on statelaw questions.); Engle v. Isaac, 456 U.S. 107, 121 n.21
22 (1982).
23 An allegation that a state criminal law statute of limitations has been
24 improperly applied raises solely an issue of state law, and is therefore non
25
cognizable on federal habeas. See Velazquez v. Sternes, 151 F. Supp. 2d 946, 950
26
(N.D. Ill. 2000) (holding that claim that charge was brought after statute of
27
limitations had expired was purely a state law issue and was therefore not
28
15
1 cognizable on habeas corpus). Accordingly, this claim must be dismissed with

2 prejudice.
3 D. Ground Five.
4 In Ground Five, Petitioner argues that the trial court lacked subject matter
5 jurisdiction to try him because the indictment was invalid on its face. To the extent
6 Petitioner is alleging a defect in the indictment, his federal claims are not
7 cognizable in federal habeas review. The Supreme Court has never made the Fifth
8 Amendments Grand Jury Clause binding upon the states through the Fourteenth
9 Amendments Due Process Clause. See Alexander v. Louisiana, 405 U.S. 625, 633
10 (1972); Hurtado v. California, 110 U.S. 516, 53435 (1884); Jeffries v. Blodgett, 5
11 F.3d 1180, 1188 (9th Cir. 1993). Because the Supreme Court has not selectively
12 incorporated this constitutional provision, Petitioner is not entitled to habeas relief
13 based upon any alleged defect in the indictment. Roe v. Baker, 316 F.3d 557, 570
14 (6th Cir. 2002) (Beyond notice, a claimed deficiency in a state criminal
15 indictment is not cognizable on federal collateral review); Bae v. Peters, 950 F.2d
16 469, 47879 (7th Cir. 1991) (Since Bae was not entitled to a grand jury
17 indictment, his claim that the indictments amendment deprived him of his right to
18 a grand jury indictment states no federal claim upon which to grant a writ of
19 habeas corpus); see also United States v. Cotton, 535 U.S. 625, 63031 (2002)
20 (determining that defective indictments do not deprive the trial court of
21 jurisdiction); Wright v. Angelone, 151 F.3d 151, 15758 (4th Cir. 1998) (holding
22 that a claim alleging lack of jurisdiction via defective indictment based upon
23 interpretation of state law is not cognizable on federal habeas review); Ashford v.
24 Edwards, 780 F.2d 405, 407 (4th Cir. 1985). Petitioners claim is not cognizable in
25
federal habeas review and must be dismissed.
26
27
28
16
1 V. EXHAUSTION OF STATE REMEDIES/PROCEDURAL DEFAULT.

2 A. Law governing exhaustion/procedural default.
3 A court cannot grant a state prisoners application for a federal writ of
4 habeas corpus unless the petitioner has properly exhausted the remedies available
5 in state court. See 28 U.S.C. 2254(b)(1)(A); Coleman, 501 U.S. 722, 731 (1991);
6 Rose v. Lundy, 455 U.S. 509, 510 (1982). To properly exhaust state remedies, a
7 prisoner must fairly present his federal claims to the states highest court in a
8 procedurally appropriate manner. OSullivan v. Boerckel, 526 U.S. 838, 842
9 (1999); Castille v. Peoples, 489 U.S. 346, 351 (1989); see also Swoopes v. Sublett,
10 196 F.3d 1008, 100910 (9th Cir. 1999) (holding that except in cases in which life
11 sentences or the death penalty has been imposed, Arizona state prisoners properly
12 exhaust their claims for the purpose of federal habeas corpus by presenting them to
13 the Arizona Court of Appeals). This exhaustion requirement means that state
14 prisoners must invoke one complete round of a states established appellate review
15 process before presenting their claims to a federal court in a federal habeas
16 petition. Boerckel, 526 U.S. at 84244.
17 A petitioner does not satisfy the exhaustion requirement by merely
18 presenting the state courts with the facts necessary to state a claim for relief or by
19 making a general appeal to a constitutional guarantee such as due process. See
20 Gray v. Netherland, 518 U.S. 152, 163 (1996); see also Shumway v. Payne, 223
21 F.3d 982, 987 (9th Cir. 2000) (finding that a naked reference to due process
22 fails to state a federal claim) (citing Gray, 518 U.S. at 163). Likewise, it is not
23 enough that a somewhat similar state law claim was raised below. Duncan v.
24 Henry, 513 U.S. 364, 366 (1995). Instead, the petitioner must specifically identify
25 the federal nature of the claim to the state court by citing federal law or federal
26
precedent. See Baldwin v. Reese, 541 U.S. 27, 3233 (2004) (ruling that a state
27
court petition must alert state court to the federal nature of a claim in order to
28
17
1 exhaust if for purposes of federal habeas review); Gray, 518 U.S. at 16263 ([A]
2 claim for relief in habeas corpus must include reference to a specific federal
3 constitutional guarantee, as well as a statement of facts that entitled the petitioner
4 to relief.) (citing Picard v. Connor, 404 U.S. 270 (1971)); Duncan, 513 U.S. at
5 366 (If a habeas petitioner wishes to claim that an evidentiary ruling at a state
6 court trial denied him the due process of law guaranteed by the Fourteenth
7 Amendment, he must say so, not only in federal court, but in state court.); see also
8 Peterson v. Lampert, 319 F.3d 1153, 115859 (9th Cir. 2003) (finding that a mere
9 citation of state cases analyzing federal constitutional claims in a state petition
10 written by counsel does not necessarily fairly present a claim to a state court for
11 purposes of exhaustion); Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002)
12 (Ordinarily, fairly presenting a federal claim means that the petitioner must
13 make the federal basis of the claim explicit either by citing federal law or the
14 decisions of federal courts, even if the federal basis is selfevident.) (quoting
15 Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended and superseded,
16 247 F.3d 904 (9th Cir. 2001)).
17 Additionally, under the independent state grounds principle, a federal habeas
18 court generally may not review a claim if the state courts denial of relief rests
19 upon an independent and adequate state ground. Coleman, 501 U.S. at 73132.
20 The United States Supreme Court has explained:
21 In the habeas context, the application of the independent and
22 adequate state ground doctrine is grounded in concerns of comity and
federalism. Without the rule, a federal district court would be able to
23 do in habeas what this Court could not do on direct review; habeas
24 would offer state prisoners whose custody was not supported by
independent and adequate state grounds an end run around the limits
25
of this Courts jurisdiction and a means to undermine the States
26 interest in enforcing its laws.
27 Id. at 73031. A petitioner who fails to follow a states procedural requirements
28
18
1 for presenting a valid claim deprives the state court of an opportunity to address
2 the claim in much the same manner as a petitioner who fails to exhaust his state
3 remedies. Thus, in order to prevent a petitioner from subverting the exhaustion
4 requirement by failing to follow state procedures, a claim not presented to the state
5 courts in a procedurally correct manner is deemed procedurally defaulted, and is
6 generally barred from habeas relief. Id. at 73132.
7 Claims may be procedurally barred from federal habeas review based upon a
8 variety of factual circumstances. If a state court expressly applied a procedural bar
9 when the petitioner attempted to raise the claim in state court, and that state
10 procedural bar is both independent and adequate, review of the merits of the
11 claim by a federal habeas court is barred.3 Ylst v. Nunnemaker, 501 U.S. 797, 801
12 (1991) (When a statelaw default prevents the state court from reaching the
13 merits of a federal claim, that claim can ordinarily not be reviewed in federal
14 court.) (citing Wainwright v. Sykes, 433 U.S. 72, 8788 (1977) and Murray v.
15 Carrier, 477 U.S. 478, 48592 (1986)).
16 Moreover, if a state court applies a procedural bar, but goes on to
17 alternatively address the merits of the federal claim, the claim is still barred from
18 federal review. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) ([A] state court
19 need not fear reaching the merits of a federal claim in an alternative holding. But
20 its very definition, the adequate and independent state ground doctrine requires the
21 federal court to honor a state holding that is a sufficient basis for the state courts
22 judgment, even when the state court also relies on federal law . . . . In this way, a
23 state court may reach a federal question without sacrificing its interests in finality,
24
________________________
25
3
A state procedural default rule is independent if it does not depend upon a
26 federal constitutional ruling on the merits. Stewart v. Smith, 536 U.S. 856, 860
(2002). A state procedural default rule is adequate if it is strictly or regularly
27 followed. Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v.
Lovorn, 457 U.S. 255, 26253 (1982)).
28
19
1 federalism, and comity.) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580
2 (9th Cir. 2003) (A state courts application of a procedural rule is not undermined
3 where, as here, the state court simultaneously rejects the merits of the claim.)
4 (citing Harris, 489 U.S. at 264 n.10, Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir.
5 1992), and Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991)).
6 Furthermore, a subsequent silent denial of review by a higher court simply
7 affirms a lower courts application of a procedural bar. Ylst, 501 U.S. at 803
8 ([W]here . . . the last reasoned opinion on the claim explicitly imposes a
9 procedural default, we will presume that a later decision rejecting the claim did not
10 silently disregard that bar and consider the merits . . . .); AcostaHuerta v. Estelle,
11 7 F.3d 139, 142 (9th Cir. 1992) (same).
12 Additionally, a procedural bar may be applied to unexhausted claims where
13 state procedural rules make a return to state court futile. Coleman, 501 U.S. at 735
14 n.1 (noting that claims are barred from habeas review when not first raised before
15 state courts and those courts would now find the claims procedurally barred);
16 Franklin v. Johnson, 290 F.3d 1223, 123031 (9th Cir. 2002) ([T]he procedural
17 default rule barring consideration of a federal claim applies only when a state
18 court has been presented with the federal claim, but declined to reach the issue for
19 procedural reasons, or if it is clear that the state court would hold the claim
20 procedurally barred.) (quoting Harris, 489 U.S. at 263 n.9) (emphasis added).
21 In Arizona, claims not previously presented to the state courts via either
22 direct appeal or collateral review are generally barred from federal review because
23 an attempt to return to state court to present them is futile unless the claims fit in a
24 narrow category of claims for which a successive petition is permitted. See Rule
25
32.1(d)(h) & 32.2(a) (precluding claims not raised on appeal or in prior petitions
26
for postconviction relief, except for narrow exceptions); Rule 32.4 (time bar).
27
Because Arizonas preclusion rule (Rule 32.2(a)) is both independent and
28
20
1 adequate, either its specific application to a claim by an Arizona court, or its

2 operation to preclude a return to state court to exhaust a claim, will procedurally
3 bar subsequent review of the merits of that claim by a federal habeas court. See
4 Smith, 536 U.S. at 860 (finding that determinations made under Arizonas
5 procedural default rule are independent of federal law); Smith v. Stewart, 241
6 F.3d 1191, 1195 n.2 (9th Cir. 2001) (We have held that Arizonas procedural
7 default rule is regularly followed [adequate] in several cases.) (citations
8 omitted), reversed on other grounds, Stewart v. Smith, supra; see also Ortiz v.
9 Stewart, 149 F.3d 923, 93132 (9th Cir. 1998) (rejecting argument that Arizona
10 courts have not strictly or regularly followed Rule 32 of Arizona Rules of
11 Criminal Procedure); Carriger, 971 F.2d at 333 (rejecting assertion that Arizona
12 courts application of procedural default rules had been unpredictable and
13 irregular); State v. Mata, 916 P.2d 1035, 105052 (Ariz. 1996) (noting that waiver
14 and preclusion rules strictly applied in postconviction proceedings).
15 Moreover, Arizonas time bar under Rule 32.4 is an independent and
16 adequate bar that would make return to state court futile. See generally, Beaty v.
17 Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (If [petitioner] has any unexhausted
18 claims, he has procedurally defaulted them, because he is not timebarred under
19 Arizona law from going back to state court.); Moreno v. Gonzalez, 116 F.3d 409,
20 410 (9th Cir. 1997) (recognizing untimeliness under Rule 32.4(a) as a basis for
21 dismissing an Arizona PCR petition distinct from preclusion under Rule 32.2(a)).
22 This Court may review a procedurally defaulted claim only if the petitioner
23 alleges and proves cause and prejudice, or a fundamental miscarriage of justice.
24 Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (We therefore require a prisoner
25
to demonstrate cause for his statecourt default of any federal claim, and prejudice
26
therefrom, before the federal habeas court will consider the merits of that claim.
27
The one exception to that rule, not at issue here, is the circumstance in which the
28
21
1 habeas petitioner can demonstrate a sufficient probability that our failure to review
2 his federal claim will result in a fundamental miscarriage of justice.) (citing
3 Coleman, 501 U.S. at 750); Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003)
4 (Because Cockett has procedurally defaulted her Confrontation Clause claim, she
5 may not raise the claim in federal habeas, absent a showing of cause and prejudice
6 or actual innocence.) (quoting Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir.
7 1994)).
8 To establish cause, a petitioner must demonstrate that some objective
9 factor external to the defense impeded counsels efforts to comply with the States
10 procedural rule. Coleman, 501 U.S. at 753; see also Carrier, 477 U.S. at 488.
11 The mere fact that a claim might have been unacceptable to [a] particular court at
12 [a] particular time does not constitute cause. Bousley v. United States, 523 U.S.
13 614, 623 (1998) (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982)).
14 To prove prejudice, a petitioner must demonstrate actual harm resulting
15 from the alleged constitutional error or violation. Carrier, 477 U.S. at 949;
16 Thomas, 945 F.2d at 1123. Thus:
17 The habeas petitioner must show not merely that the errors at . . .
18 trial created a possibility of prejudice, but that they worked to his
actual and substantial disadvantage, infecting his entire trial with error
19 of constitutional dimensions. Such a showing of pervasive actual
20 prejudice can hardly be thought to constitute anything other than a
showing that the prisoner was denied fundamental fairness at trial.
21
22 Carrier, 477 U.S. at 494 (citing United States v. Frady, 456 U.S. 152, 166 (1982)).
23 Additionally, as noted above, a habeas court may also address the merits of a
24 procedurally defaulted claim if failure to do so would result in a fundamental

25 miscarriage of justice. Sawyer v. Whitley, 505 U.S. 333, 339 (1992). To
26 demonstrate that he is factually innocent, a petitioner must prove by clear and
27 convincing evidence that no reasonable factfinder would have found him guilty
28 beyond a reasonable doubt. Bousley, 523 U.S. at 62324; Schlup v. Delo, 513 U.S.
22
1 298, 32728 (1995); Sawyer, 505 U.S. at 339. Thus, as the Supreme Court has
2 noted, the circumstances constituting a fundamental miscarriage of justice apply in
3 only a narrow class of cases, Schlup, 513 U.S. at 321, and for the most part,
4 victims of a fundamental miscarriage of justice will meet the causeandprejudice
5 standard. Carrier, 477 U.S. at 49596 (quoting Engle, 456 U.S. at 135).
6 B. Petitioners claims are procedurally defaulted.
7 1. Ground One.
8 In Ground One, Petitioner argues that: (1) trial counsel rendered ineffective
9 assistance by failing (i) challenge the indictment (subclaim (a)), (ii) prepare for
10 trial and present exculpatory evidence (subclaim (b)), and (iii) challenge the
11 sentence imposed on Counts 3 and 5 (subclaim (c)); (2) appellate counsel rendered
12 ineffective assistance as a result of a conflict of interest (subclaim (d)); and (3)
13 postconviction counsel rendered ineffective assistance by failing to present the
14 aforementioned claims and Petitioners claim of newly discovered evidence
15 (subclaim (e)).
16 a. Ground One, subclaims (b) and (d).
17 Petitioner arguably presented the claims contained Ground One, subclaims
18 (b) and (d) to the state trial court in his second, successive postconviction
19 proceeding. (Exhibits Q, T.) The state trial court, however, dismissed the claims
20 as untimely pursuant to Rule 32.4(a) of the Arizona Rules of Criminal Procedure.
21 (Exhibit U.) Additionally, Petitioner did not present these claims to the Arizona
22 Court of Appeals in a petition for review challenging the state trial courts
23 dismissal of his postconviction proceeding. (Exhibit V.) Petitioners claims are
24 thus procedurally defaulted for the following reasons: (1) in dismissing the post
25
conviction petition as untimely, 4 the state court explicitly relied upon an
26
________________________
27
4
Any attempt by Petitioner to demonstrate that the trial courts untimeliness
28 (continued ...)
23
1 independent and adequate state procedural ground; 5 (2) Petitioner did not fairly
2 ________________________
( ... continued)
3 ruling was erroneous would be unavailing because a federal court is bound by the
state courts determination that the prisoners state application for post-conviction
4 relief was untimely under state law._See Siebert, 552 U.S. at 34 (2007); Wade v.
Battle, 379 F.3d 1254, 126061 (11th Cir. 2004); Stafford v. Thompson, 328 F.3d
5 1302, 1305 (11th Cir. 2003); Merritt v. Blaine, 326 F.3d 157, 16667 (3rd Cir.
2003). [I]t is not the province of a federal habeas court to re-examine state court
6 determinations of state law questions. Estelle v. McGuire, 502 U.S. 62, 6768
(1991); see also Langford v. Day, 110 F.3d 1380, 138889 (1996) (We accept a
7 state courts interpretation of state law.).
8 5
The state trial courts express procedural ruling was independent because the
trial court did not address the merits of Petitioners claims and its ruling was not
9 interwoven with or dependent upon federal law. See LaCross v. Kernan, 244 F.3d
702, 704 (9th Cir. 2001). In addition, the trial courts reliance on Rule 32.4(a) to
10 dismiss Petitioners petition for review as untimely was adequate because that
rules requirements are strictly enforced. See Johnson, 486 U.S. at 587; Bennett v.
11 Mueller, 322 F.3d 573, 583 (9th Cir. 2003) (To be deemed adequate the state law
ground for decision must be well-established and consistently applied.); see also
12 Poland v. Stewart, 169 F.3d 573, 58587 (9th Cir. 1998) (recognizing Rule 32.2(a)
as an adequate procedural bar); State v. Rosario, 195 Ariz. 264, 266, 7, 987 P.2d
13 226, 228 (App. 1999) (stating an untimely PCR proceeding can be summarily
dismissed if untimely under Rule 32.4(a)); see also, e.g., State v. Carriger, 143
14 Ariz. 142, 146, 692 P.2d 991, 995 (Ariz. 1984) (observing that petitioners must
strictly comply with Rule 32 or be denied relief). It is equally well established that
15 that Arizona courts consistently apply Rule 32.2(a) and that it is an independent
and adequate procedural bar. See Stewart v. Smith, 536 U.S. 856, 860 (2002)
16 (holding that Ariz. R. Crim.P. 32.2(a) is an adequate and independent procedural
bar); Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) (Arizona Rule of
17 Criminal Procedure 32.2(a)(3) is independent of federal law and has been regularly
and consistently applied, so it is adequate to bar federal review of a claim.); Cook
18 v. Schriro, 538 F.3d 1000, 1026 (9th Cir. 2008); Ortiz v. Stewart, 149 F.3d 923,
93132 (9th Cir. 1998) (rejecting the argument that Arizona courts have not
19 strictly or regularly followed Rule 32); Poland v. Stewart, 117 F.3d 1094, 1106
(9th Cir. 1997) (not demonstrated that Arizona has become irregular in its
20 application of procedural default rules); MartinezVillareal v. Lewis, 80 F.3d 1301,
1306 (9th Cir. 1996) (prisoner did not establish that Arizona has become
21 inconsistent and irregular in its reliance on procedural default); Carriger v. Lewis,
971 F.3d 329, 333 (9th Cir. 1992) (en banc) (rejecting argument that Arizonas
22 reliance on procedural default was so unpredictable and irregular that it did not
provide an adequate ground for barring habeas review); see also Dugger v. Adams,
23 489 U.S. 401, 411 n. 6 (1989) (holding that a state rule is considered consistently
applied and wellestablished if the state courts follow it in the vast majority of
24 cases). Even if Rule 32.2(a) were construed as a discretionary rule (despite the
wording and intent of the rule), the Supreme Court has made clear that
25 discretionary rules can be adequate bars to habeas review. See Beard v. Kindler,
130 S. Ct. 612, 61415, 618 (2009). Thus, even if a few Arizona trial courts have
26 bent over backwards to protect defendants rights in a tiny minority of capital
cases, that does not undo the procedural bar: a discretionary rule can be firmly
27 established and regularly followedeven if the appropriate exercise of
discretion may permit consideration of a federal claim in some cases but not
28 (continued ...)
24
1 present the claims to all levels of state courts as federal constitutional claims; and
2 (3) Arizonas procedural rules make it futile for Petitioner to return to state court to
3 attempt to properly exhaust the claims. See Rule 32.2(a)(3), Ariz. R. Crim. P.
4 (precluding postconviction relief upon any ground that has been waived at trial,
5 on appeal, or in any previous collateral proceeding); Rule 32.4(a), Ariz. R. Crim.
6 Pro.; see also Beaty , 303 F.3d at 987 (holding that a state postconviction action is
7 futile where it is timebarred); Moreno, 116 F.3d at 410 (recognizing untimeliness
8 under Ariz. R. Crim. P. 32.4(a) as a basis for dismissal of an Arizona petition for
9 postconviction relief, distinct from preclusion under Rule 32.2(a)); Mata, 185
10 Ariz. at 332, 916 P.2d at 1048 (defendant waived claim that defendants counsel at
11 sentencing was ineffective where defendant did not raise claim in either first or
12 second petitions for postconviction relief); Krone v. Hotham, 181 Ariz. 364, 366,
13 890 P.2d 1149, 1151 (Ariz. 1995) (capital defendants early petition for post
14 conviction relief raised limited number of issues and waived other issues that he
15 could have then raised, but did not); State v. Curtis, 185 Ariz. 112, 113, 912 P.2d
16 1341, 1342 (Ariz. App. 1995) (Defendants are precluded from seeking post
17 conviction relief on grounds that were adjudicated, or could have been raised and
18 adjudicated, in a prior appeal or prior petition for postconviction relief); State v.
19 Berryman, 178 Ariz. 617, 624, 875 P.2d 850, 857 (App. 1994) (defendants claim
20 that his sentence had been improperly enhanced by prior conviction was precluded
21 by defendants failure to raise issue on appeal).
22 b. Ground One, subclaims (a), (c) and (e).
23 In Ground One, sublcaims (a), (c), and (d) Petitioner argues that trial counsel
24 rendered ineffective assistance by failing to: (1) challenge the indictment; and (2)
25 ________________________
( ... continued)
26 others. 130 S. Ct. at 618. As the Supreme Court recognized: A contrary holding
would pose an unnecessary dilemma for the States: States could preserve flexibility
27 by granting courts discretion to excuse procedural errors, but only at the cost of
undermining the finality of state court judgments. Id.
28
25
1 challenge the sentence imposed on Counts 3 and 5. Petitioner further argues that
2 postconviction counsel rendered ineffective assistance by failing to present the
3 aforementioned claims and Petitioners claim of newly discovered evidence.
4 Petitioner, however, never presented these claims to the state trial court during his
5 postconviction proceedings, nor in a petition for review to the Arizona Court of
6 Appeals. Thus, these claims are procedurally defaulted for the following reasons:
7 (1) the claims were not properly presented to all levels of state courts; (2) the
8 claims were not fairly presented to each level of the state courts as federal
9 constitutional claims; and (3) as discussed supra, Arizonas procedural rules make
10 it futile for Petitioner to return to state court to properly exhaust the claim.
11 2. Ground Two.
12 a. Ground two is procedurally defaulted
13 In Ground Two, it appears that Petitioner is arguing that he actually innocent
14 of the conviction proven pursuant to Count 3 of the state indictment. (Dkt. 1, at 7.)
15 Specifically, Petitioner argues that posttrial affidavits of the victim confirm[] his
16 assertion that the alleged crime never happened, and that defense counsel was
17 ineffective for failing to present test testimony at trial. (Id.)
18 Although Petitioner arguably presented these claims to the state trial court
19 during his second, successive postconviction proceeding, the state trial court
20 dismissed the claim as untimely pursuant to Arizona Rules of Criminal Procedure
21 32.1(e) and 32.4(a). The claim is thus procedurally defaulted for the following
22 reasons: (1) in dismissing the petition, the state court explicitly relied upon
23 independent and adequate state procedural grounds; (2) Arizonas procedural rules
24 now preclude Petitioner from returning to state court to properly exhaust the claim;
25
and (3) Petitioner has failed to demonstrate cause and prejudice, nor a colorable
26
showing of actual innocence.
27
28
26
1 b. The actual innocence exception does not apply

2 to excuse Petitioners procedural default.
3 To the extent Petitioners claim could be construed as attempting to

4 circumvent his procedural default via the actualinnocence gateway, Petitioners
5 claim fails. A gateway actual innocence claim differs from a substantive actual
6 innocence claim. 6 See Smith v. Baldwin, 466 F.3d 805, 81112 (9th Cir. 2006),
7 overruled on other grounds by Smith v. Baldwin, 510 F.3d 1127 (9th Cir. 2007).
8 The Supreme Court described the gateway showing in Schlup, 513 U.S. at 31516,
9 as a less stringent standard than a substantive claim of actual innocence. See
10 Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir.1997) (suggesting that a habeas
11 petitioner asserting a freestanding innocence claim must go beyond demonstrating
12 doubt about his guilt and must affirmatively prove that he is innocent). Still, the
13 fundamentalmiscarriageofjustice exception applies only to a narrow class of
14 cases in which a petitioner makes the extraordinary showing that an innocent
15 person was probably convicted due to a constitutional violation. See Schlup, 513
16 U.S. at 331 (recognizing that where a constitutional violation has probably
17 resulted in the conviction of one who is actually innocent, a federal habeas court
18 may grant the writ even in the absence of a showing of cause for the procedural
19 default) (quoting Murray, 477 U.S. at 496; Smith, 510 F.3d at 1139 (quoting
20 McCleskey v. Zant, 499 U.S. 467, 494 (1991)); see also Schlup, 513 U.S. at 321
21 (recognizing that where a constitutional violation has probably resulted in the
22 conviction of one who is actually innocent, a federal habeas court may grant the
23 writ even in the absence of a showing of cause for the procedural default)
24
________________________
25
6
As noted supra, the United States Supreme Court has not yet recognized a free
26 standing actual innocence as a grounds for habeas relief. See Herrera v. Collins,
506 U.S. 390, 400401 (1993); see also Jackson v. Calderon, 211 F.3d 1148,
27 116465 (9th Cir.2000) (pointing out that Herrera did not foreclose a free-standing
claim of actual innocence, and a majority assumed that such a claim existed).
28
27
1 (quoting Murray, 477 U.S. at 496. Thus, [i]n order to pass through the actual
2 innocence procedural gateway of Schlup, [Petitioner] must show that, in light of all
3 available evidence, it is more likely than not that no reasonable juror would convict
4 him of the crimes. Smith, 510 F.3d at 1140. As the Ninth Circuit has stated,
5 [t]his standard is not easy to meet. Gandarela v. Johnson, 286 F.3d 1080, 1086
6 (9th Cir. 2002). Moreover, when making this determination, a federal court may
7 consider how the timing of the [evidentiary] submission and the likely credibility
8 of the affiants bear on the probable reliability of that evidence. Schlup, 513 U.S.
9 at 332; see also Bosley v. Cain, 409 F.3d 657, 664 (5th Cir. 2005) (where newly
10 presented evidence calls into question the credibility of trial witnesses, the habeas
11 court may have to make some credibility assessments).
12 To demonstrate a fundamental miscarriage of justice, Petitioner must show
13 that a constitutional violation has resulted in the conviction of one who is actually
14 innocent. Schlup, 513 U.S. 327. To establish the requisite probability, Petitioner
15 must prove with new reliable evidence that it is more likely than not that no
16 reasonable juror would have found petitioner guilty beyond a reasonable doubt.
17 Id. New evidence presented in support of a fundamental miscarriage of justice
18 may include exculpatory scientific evidence, trustworthy eyewitness accounts, or
19 critical physical evidence that was not presented at trial. Id. at 324; see House v.
20 Bell, 547 U.S. 518, 53738 (2006) (stating that a fundamentalmiscarriageof
21 justice contention must involve evidence that the trial jury did not have before it).
22 Here, in support of his habeas petition, Petitioner had submitted an affidavit
23 from L.P. avowing that Petitioner never engaged in sexual intercourse with her.
24 (Dkt. 1, at 16.) Petitioners submission in support of his habeas petition, however,
25
does not meet his burden of proving that it is more likely than not that no
26
reasonable juror would have convicted him in light of his new evidence.
27
In Count 3, Petitioner was charged with sexual conduct with a minor.
28
28
1 (Exhibit A.) Under the statutes in effect at the time of the offense, a person
2 commits sexual conduct with a minor when they intentionally or knowingly
3 penetrate the vulva of another person, less than 15 years of age, with a part of his
4 body. See A.R.S. 131401(3), A.R.S. 131405.
5 At trial, L.P. testified that Petitioner touched her on her private[s].
6 (Exhibit C, at 134, 136.) When asked whether, anything ever happened to the
7 inside of [her] private[]s, however, she responded, I dont remember. (Id. at
8 139.) She further stated that she feared Petitioner. (Id. at 140.)
9 In addition to L.P.s testimony, the state presented the testimony of Wendy
10 Dutton, a forensic interviewer. (Id. at 15859.) Ms. Dutton interviewed L.P. on
11 two occasions, August 30, 2001 and March 15, 2002. (Id. at 17374.) During the
12 March 15, 2002, interview, L.P. detailed an incident that took place at Petitioners
13 home when she was in the first grade. (Id.) During the incident, Petitioner
14 touched her in the genital area with his hand, and she felt a pinching sensation.
15 (Id.)
16 The state also presented the testimony of Dr. Catherine Coffman, a
17 pediatrician, who examined L.P. within six months of the incident, subsequently
18 testified that, as a result of the examination, she concluded that L.P.s hymen was
19 abnormal because there wasnt very much of it. (Exhibit D, at 313.)
20 Comparing a diagram of a hymen to the face of a clock, Dr. Coffman stated that
21 Lauras hymen was missing tissue from the 2 oclock to the 4 oclock positions.
22 (Id. at 13.) In addition, from the 4 oclock to the 10 oclock positions, the tissue
23 was very narrow. (Id.) L.P. had no history of accidental genital trauma when Dr.
24 Coffman examined her. (Id. at 6.) According to Dr. Coffman, because a large area
25
of L.P.s hymen was abnormal, the trauma was likely the result of repeated
26
incidents. (Id. at 15.) In her opinion, the injury was caused by something
27
penetrating through the hymen. (Id.) In Dr. Coffmans opinion, the trauma to
28
29
1 Lauras hymen was not caused by an accidental occurrence such as a straddle

2 injury. (Id. at 17.) After assessing the injury to Lauras hymen, Dr. Coffman felt
3 that the injuries were consistent with the history of abuse that was provided to her
4 through investigative authorities. (Id. at 19.)
5 When considering the aforementioned testimony and evidence, Petitioner
6 has failed to carry his burden of proving that it is more likely than not that no
7 reasonable juror would have convicted him, even in light of his new evidence.
8 First, it is well established that such recantation evidence is inherently unreliable.
9 See Carriger, 132 F.3d 463, 483 n.1 (There is no form of proof so unreliable as
10 recanting testimony. . . . Those experienced in the administration of the criminal
11 law know well its untrustworthy character. (Kozinski, J., dissenting); See also
12 Dobbert v. Wainwright, 468 U.S. 1231, 1233, (1984) (Recantation testimony is
13 properly viewed with great suspicion.) (Brennan, J., dissenting from denial of
14 certiorari); Olson v. United States, 989 F.2d 229, 231 (7th Cir. 1993) (It is a truism
15 that our courts treat recantations with skepticism.); United States v. Provost, 969
16 F.2d 617, 620 (8th Cir. 1992) (The district court began by correctly observing that
17 new trial motions based on recanted testimony are immediately suspect.). This
18 suspicion is especially applicable in cases of child sexual abuse where recantation
19 is a recurring phenomenon, particularly when family members are involved and the
20 child has feelings of guilt or the family members seek to influence the child to
21 change her story. United States v. Rouse, 410 F.3d 1005, 1009 (8th Cir .2005)
22 (internal quotations omitted). One scholar has written:
23 After the child has disclosed the incident, it is not unusual for the
24 child to deny later that the abuse occurred. Child victims of sexual
abuse are frequently influenced by the father and other family
25
members to retract or recant their story so that family life will return
26 to normal.
27
Elaine R. Cacciola, Comment, The Admissibility of Expert Testimony in Intrafamily
28
30
1 Child Sexual Abuse Cases, 34 UCLA L.Rev. 175, 188 (1986). Courts agree with
2 these conclusions. See e.g., United States v. Provost, 969 F.2d 617, 621 (8th Cir.
3 1992) (Recantation is particularly common when family members are involved
4 and the child has feelings of guilt or the family members seek to influence the child
5 to change her story.); Myatt v. Hannigan, 910 F.2d 680, 685 (10th Cir.1990)
6 ([T]he childs recanting of her statement to family members is not atypical in sex
7 abuse cases.); State v. Tharp, 372 N.W.2d 280, 282 (Iowa Ct. App. 1985) (In
8 intrafamily abuse cases where families are torn apart, there is great pressure on
9 the child to make things right. ); State v. Cain, 427 N.W.2d 5, 8 (Minn. Ct. App.
10 1988) (Recantation is a frequent characteristic of child abuse victims.); State v.
11 Gallagher, 554 A.2d 221, 225 (Vt .1988) (There is high probability of a child
12 victim recanting a statement about being abused sexually.).
13 Second, the evidence Petitioner is presenting, a witness affidavit, does not
14 constitute new reliable evidence. See Schlup, 513 U.S. at 324. The affidavits are
15 not exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
16 physical evidence. Id. Though sworn, affidavits are not convincing evidence of
17 innocence because the affiants statements are obtained without the benefit of
18 crossexamination and an opportunity to make credibility determinations. See
19 Herrera, 506 U.S. at 417.
20 The timing of Petitioners habeas petition is also telling and should be taken
21 into account in considering Petitioners claim. The record reflects that Petitioner
22 waited over 9 years after his conviction became final to file the instant habeas
23 petition and, during that period of time, he waited over 4 years to initiate post
24 conviction proceedings in state court. His lack of diligence undoubtedly
25
undermines any claim of actual innocence. Schlup, 513 U.S at 332.
26
In light of the aforementioned, Petitioner has clearly failed to demonstrate
27
that no juror, acting reasonably would have voted to find him guilty beyond a
28
31
1 reasonable doubt. Schlup, 513 U.S. at 329. Accordingly, because Petitioner has
2 failed to demonstrate a sufficient showing of actual innocence to establish a
3 miscarriage of justice, House, 547 U.S. at 53640; Schlup, 513 U.S. at 327, he has
4 failed to present sufficient cause to excuse his procedural default of Ground Two.
5 3. Ground Three.
6 In Ground Three, Petitioner argues that trial counsel rendered ineffective
7 assistance for failing to present evidence establishing that, in regards to Counts
8 Counts 7 and 8, Petitioner was not in Arizona during the time of the incidents
9 alleged in the indictment. (Dkt. 1, at 8.) Although Petitioner arguably raised this
10 claim in his second, successive postconviction proceeding in state court, the
11 record reflects that the state trial court dismissed the claim as untimely pursuant to
12 Rule 32.4(a) of the Arizona Rules of Criminal Procedure. (Exhibit U, at 12.)
13 Therefore, Ground Three is procedurally defaulted for the following reasons: (1) in
14 dismissing the claim, the state trial court explicitly applied a state procedural bar to
15 avoid reaching the merits of Petitioners claims, which constitutes an independent
16 and adequate state law ground barring federal review; and (2) as discussed supra,
17 Arizonas procedural rules make it futile for Petitioner to return to state court to
18 attempt to exhaust the claim in any subsequent proceeding.
19 4. Ground Four.
20 In Ground Four, Petitioner argues that his convictions for Counts Five and
21 Eleven of the indictment were invalid because they were barred by the statute of
22 limitations under state law. As noted supra, this claim must be dismissed because
23 it is noncognizable on federal habeas review. Additionally, although Petitioner
24 arguably presented this claim to the state trial court in his second, successive post-
25
conviction proceeding the state trial court dismissed the claim as untimely. 7
26
________________________
27
7
Although the state trial court did not specifically address this claim in its order
28 (continued ...)
32
1 Therefore, Ground Four is procedurally defaulted for the following reasons: (1) in
4 and adequate state law ground barring federal review; and (2) as discussed supra,
5 Arizonas procedural rules make it futile for Petitioner to return to state court to
6 attempt to exhaust the claim in any subsequent proceeding.
7 5. Ground Five.
8 In Ground Five, Petitioner argues that trial counsel rendered ineffective
9 assistance by failing to elicit testimony on crossexamination that witness T.C. was
10 present at the time of the alleged misconduct in Count One and Two of the
11 indictment and that she originally told the police that nothing criminal happened.
12 (Dkt. 1, at 9a.) Petitioner arguably raised this claim in his second, successive
13 petition for postconviction relief. (Exhibit T, at 26.) The trial court, however,
14 dismissed the claim as untimely pursuant to Rule 32.4(a) of the Arizona Rules of
15 Criminal Procedure. (Exhibit U, at 1.) Petitioner did not thereafter properly
16
________________________
17 ( ... continued)
dismissing Petitioners post-conviction proceeding, it: (1) held that the proceeding
18 had been initiated in an untimely manner; (2) did not did not address the merits
of any claim; and (3) specifically concluded that Petitioner fail[ed] to state a claim
19 that [could] be addressed in an untimely and successive Petition for Post-
Conviction Relief. (Exhibit U, at 2.) Even if the state courts failure to
20 specifically address the claim could somehow be construed as a summary dismissal
on the merits, it is of no moment because any such holding does not vitiate the
21 courts determination that the proceeding was untimely. See Gorby v. McNeil, 530
F.3d 1363, 1367 (11th Cir. 2008) (Even if we were to accept that the [State] Court
22 reached the merits, consideration of the merits cannot alone convert a motion for
post-conviction relief that no one disputes is time-barred under state law into a
23 properly filed motion for tolling purposes under AEDPA.); see also Carey v.
Saffold, 536 U.S. 214, 21718 & 226 (2002) (holding that a state courts denial of
24 a state habeas petition with the words, on the merits and for lack of diligence, did
not necessarily mean that the state habeas petition had been timely filed); Waldrip
25 v. Hall, 548 F.3d 729, 732 (9th Cir. 2008) (observing that the Saffold Court noted
that a state court may address the merits of a claim even if it was presented in an
26 untimely way when the merits present no difficult issue, where the court wants to
identify potential alternative grounds for decision, or where the court wants to
27 explain to a prisoner that his claim failed for substantive reasons, not simply based
on some procedural technicality.).
28
33
1 present the claim to the Arizona Court of Appeals in a petition for review.
2 Therefore, Ground Five is procedurally defaulted for the following reasons: (1) in
5 and adequate state law ground barring federal review; (2) Petitioner did not fairly
6 present the claim to each level of state court as federal constitutional claims; and
7 (3) as discussed supra, Arizonas procedural rules make it futile for Petitioner to
8 return to state court to attempt to exhaust the claim in any subsequent proceeding.
9 6. Ground Six.
10 In Ground Six, Petitioner argues that his trial counsel was ineffective for
11 failing to object when the trial court failed to give a clarifying jury instruction that
12 the jury should ignore the states references to DNA evidence because no such
13 evidence existed. (Dkt. 1, at 9b.) Petitioner, however, did not present this claim to
14 any state court either during his direct appeal, nor during postconviction
15 proceedings. The claim is therefore procedurally defaulted for the following
16 reasons: (1) Petitioner did not fairly present the claim to each level of state court as
17 federal constitutional claims; and (2) as discussed supra, Arizonas procedural
18 rules will not permit Petitioner to return to state court to exhaust the claim in any
19 subsequent proceeding.
20 7. Ground Seven.
21 In Ground Seven, Petitioner argues that the trial court lacked subject matter
22 jurisdiction because the indictment was invalid on its face. Petitioner arguably
23 raised this claim in the state trial court during his second, successive petition for
24 postconviction relief. (Exhibit T, at 11.) From what can be discerned from
25
Petitioners pleading, however, it does not appear that he presented the claim as a
26
federal constitutional claim. Moreover, in dismissing the claim, the state trial court
27
28
34
1 dismissed the claim as untimely. 8 Petitioner did not properly present the claim to
2 the Arizona Court of Appeals in a petition for review. Accordingly, the claim is
3 procedurally defaulted for the following reasons: (1) in dismissing the claim, the
4 state trial court explicitly applied a state procedural bar to avoid reaching the
5 merits of Petitioners claims, which constitutes an independent and adequate state
6 law ground barring federal review; (2) Petitioner did not fairly present the claim to
7 each level of state court as federal constitutional claims; and (3) as discussed
8 supra, Arizonas procedural rules make it futile for Petitioner to return to state
9 court to attempt to exhaust the claim in any subsequent proceeding.
10 B. Petitioner has failed to demonstrate cause and prejudice or a
11 fundamental miscarriage of justice.
12 As a result of Petitioners procedural defaults, this Court is precluded from
13 reviewing the aforementioned claims unless Petitioner carries his affirmative
14 burden of demonstrating cause and prejudice or a fundamental miscarriage of
15 justice. Coleman, 501 U.S. at 753; Frady, 456 U.S. at 170. Petitioner has not
16 presented any plausible allegation of cause and prejudice,[ ] which are
17 necessary to excuse procedural default. See Massaro v. United States, 538 U.S.
18 500, 504, (2003); Bousley, 523 U.S. at 622. Petitioners pro se status and lack of
19 legal knowledge do not constitute external, objective factors that prevent
20 compliance with procedural rules. See Tacho v. Martinez, 862 F.2d 1376, 1381
21 (9th Cir. 1988) (pro se status does not establish cause for procedural default). Nor
22 ________________________
23 8
Although the state trial court did not specifically address this claim in its order
dismissing Petitioners post-conviction proceeding, it: (1) held that the proceeding
24 had been initiated in an untimely manner; (2) did not did not address the merits
of any claim; and (3) specifically concluded that Petitioner fail[ed] to state a claim
25 that [could] be addressed in an untimely and successive Petition for Post-
Conviction Relief. (Exhibit U, at 2.) And even if the state courts failure to
26 specifically address the claim could somehow be construed as a summary dismissal
on the merits, it is of no moment because any such holding does not vitiate the
27 courts determination that the proceeding was untimely. See Gorby, 530 F.3d at
1367.
28
35
1 has Petitioner made anything approaching a colorable showing of actual innocence.

2 See Schlup, 513 U.S. at 327. As a result, because Petitioner has failed to allege,
3 much less carry his burden of demonstrating cause and prejudice, or a fundamental
4 miscarriage of justice to excuse the procedural default of his claims, the pending
5 petition must be dismissed with prejudice.
6
VI. CONCLUSION.
7
Based on the foregoing authorities and arguments, Respondents respectfully
8
request that the Petition for Writ of Habeas Corpus be denied and dismissed with
9
prejudice.
10
RESPECTFULLY SUBMITTED this 27th day of June 2014.
11
Thomas C. Horne
12 Attorney General
13
Joseph T. Maziarz
14 Chief Counsel
15
/s/
16 W. Scott Simon
Assistant Attorney General
17
Attorneys for Respondents
18
19
20
21
22
23
24
25
26
27
28
36
1 CERTIFICATE OF SERVICE
2 I hereby certify that on June 27, 2014, I served the attached document by mail on
the following, who is not a registered participant of the ECF System:
3
Alfred Copeland #171877
4 ASPC EymanCook Unit
P. O. Box 3200
5 Florence, AZ 85132
6 Petitioner, Pro Se
7
s/E. Leyva
8
9
10 3857800
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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1 LIST OF EXHIBITS
2 A. Reporters Transcript, 08/08/2002.
3 B. Reporters Transcript, 09/17/2002.
C. Reporters Transcript, 09/18/2002.
4 D. Reporters Transcript, 09/19/2002.
5 E. Reporters Transcript, 09/23/2002.
F. Reporters Transcript, 09/24/2002.
6 G. Reporters Transcript, 09/25/2002.
7 H. Reporters Transcript, 11/15/2002.
I. Opening Brief.
8 J. Arizona Court of Appeals Mandate and Memorandum Decision.
9 K. Petition for Review, Arizona Supreme Court.
L. Notice of Post-Conviction Relief, 04/23/2008.
10 M. Minute Entry, 05/05/2008.
11 N. Petition for Review, Arizona Court of Appeals.
O. Arizona Court of Appeals Order, 09/01/2009.
12
P. Notice of Post-Conviction Relief, 01/05/2010.
13 Q. Petition for Post-Conviction Relief, 01/05/2010.
R. Minute Entry, 03/16/2010.
14
S. Notice of Completion of Record.
15 T. Notice of Post-Conviction Relief, 08/18/2010.
U. Minute Entry, 02/10/2011.
16
V. Petition for Review, 04/11/2011.
17 W. Arizona Court of Appeals Order, 01/04/2013.
X. Indictment.
18
Y. Answering Brief, Direct Appeal.
19 Z. States Response to Petition for Post-Conviction Relief.
20
21
22
23
24
25
26
27
28
38

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Case 2:13-cv-02278-PGR Document 15 Filed 06/27/14 Page 1 of 38

1 MEMORANDUM OF POINTS AND AUTHORITIES1

1 breasts and vagina, against her will. (Id.)

1 with a minor (L.P.) and Count 11 (furnishing obscene or harmful materials to

1 Petitioner thereafter filed a petition for review in the Arizona Court of

1 Petitioner thereafter filed a pro se successive notice of postconviction

1 evidence. (Id.) The Arizona Court of Appeals summarily denied review on

27 tolling occurred between September 3, 2004 and September 3, 2005 because

1 Equitable tolling is unavailable in most cases. Miranda v. Castro, 292 F.3d

1 liberally construed, the policy of liberal construction cannot plausibly justify a

1 cognizable on habeas corpus). Accordingly, this claim must be dismissed with

1 V. EXHAUSTION OF STATE REMEDIES/PROCEDURAL DEFAULT.

1 adequate, either its specific application to a claim by an Arizona court, or its

24 procedurally defaulted claim if failure to do so would result in a fundamental

1 b. The actual innocence exception does not apply

3 To the extent Petitioners claim could be construed as attempting to

1 Lauras hymen was not caused by an accidental occurrence such as a straddle

1 has Petitioner made anything approaching a colorable showing of actual innocence.

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