Borchers v. Shinn
| Decision Date | 25 October 2021 |
| Docket Number | CV-20-08170-PCT-DGC (ESW) |
| Parties | Douglas C. Borchers, Petitioner, v. David Shinn, Director of the Arizona Department of Corrections, Respondent. |
| Court | U.S. District Court — District of Arizona |
Petitioner Douglas Borchers was sentenced to Arizona state prison in 1974 for raping a thirteen year old girl. Following his release some 40 years later, he was returned to prison for violating the conditions of his release. Borchers commenced this federal action by filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Docs. 1, 5. Magistrate Judge Eileen Willett has issued a report recommending that the Court deny the petition (“R&R”). Doc. 27. Borchers objects. Doc. 30. For reasons stated below, the Court will accept the R&R and deny the petition.
On March 12, 1974, Borchers abducted a girl from her junior high school and raped her at knife point. See Doc. 29 at 7. Borchers was convicted in state court of kidnapping, rape and lewd and lascivious conduct, and was sentenced to 20-years-to-life in prison. See Docs. 5 at 2, 29 at 2; see also State v. Borchers, CR1974-006459 (Coconino Cty. Super. Ct.); Borchers v. Lewis, 967 F.2d 584, at *1 (9th Cir. 1992).
In November 2014, the Arizona Board of Executive Clemency (“Board”) released Borchers on parole, subject to certain conditions. See Doc. 12-8 at 2, 8. In July 2019, the Arizona Department of Corrections (“ADOC”) issued an arrest warrant alleging that he had violated three conditions of supervision: (1) soliciting prostitution (condition 5); (2) accessing internet websites that cater to sex offenders (condition 13(E)); and (3) accessing websites that could encourage sexual excitement or hostile behaviors (condition 13(G)). Id. at 2-13. The Board revoked Borchers' parole in August 2019 after finding that he had violated each condition. Docs. 12-9 at 2. He was returned to prison to continue serving his sentence in the 1974 case.
In September 2019, Borchers challenged the parole revocation in a state-court petition for post-conviction relief (“PCR”) under Arizona Rule of Criminal Procedure 32.1. Doc. 12-1. The superior court dismissed the petition. Doc. 12-4. The court of appeals granted review, but denied relief. Doc. 12-6; State v. Borchers, No. 1 CA-CR 20-0070 PRPC, 2020 WL 3249932, at *1 (Ariz.Ct.App. June 16, 2020).
Borchers brought this federal habeas action in July 2020. Doc. 1. He asserts two grounds for relief in his amended petition: (1) parole conditions implemented after his 1974 case violate the ex post facto clause of the United States Constitution, and (2) his continued imprisonment after his sentence expired under a 1992 revision of state sentencing laws violates due process. Doc. 5 at 6-7. Respondent filed an answer opposing the petition and Borchers filed a reply. Docs. 12, 23. Judge Willett finds ground one to be without merit and ground two to be procedurally defaulted without excuse. Doc. 27 at 2-10.
This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court “must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). The Court is not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).
Federal habeas petitions are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241, et seq. The AEDPA prohibits a federal court from granting habeas relief unless the petitioner has “exhausted the remedies available in the courts of the State[.]” 28 U.S.C. § 2254(b)(1)(A). “[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts[.]” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To “fairly present” a federal claim in state court, the petitioner must provide the factual and legal basis for the claim. Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). He must “make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996).
An unexhausted claim is procedurally defaulted where state procedural rules make a return to state court futile. See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). A federal court may not consider the merits of a procedurally defaulted claim unless the petitioner establishes cause for the default and actual prejudice, or shows that a miscarriage of justice would result. See Id. at 750-51; Schlup v. Delo, 513 U.S. 298, 321 (1995). Under the cause and prejudice test, the petitioner must show that some external cause prevented him from following the procedural rules of the state court and fairly presenting his claim. See Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). A miscarriage of justice exists when a constitutional violation has resulted in the conviction of one who is “actually innocent.” Schlup, 513 U.S. at 327. “Actual innocence, ” for purposes of Schlup, “means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
Where a petitioner attempts to exhaust a federal claim in state court and the claim is deemed waived for “noncompliance with a state procedural rule, the federal claim is procedurally defaulted[.]” Smith v. Or. Bd. of Parole & Post-Prison Supervision, 736 F.3d 857, 862 (9th Cir. 2013) (citing Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977)). This procedural default rule applies where “the state procedural rule . . . provide[s] an adequate and independent state law basis on which the state court can deny relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014) (quoting Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003)). “Arizona's waiver rules are independent and adequate bases for denying relief.” Id.; see Ariz. R. Crim. P. 32.2(a) ().
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). A state prisoner, therefore, may not obtain federal habeas relief for errors of state law. See Id. at 67-68.
With respect to the merits of exhausted and cognizable federal claims, the AEDPA requires federal courts to defer to the last reasoned state court decision. See Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 2018). Habeas relief is not warranted unless the petitioner shows that the state court's decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or (2) based on an unreasonable determination of the facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d). “A state court decision is ‘contrary to' clearly established federal law if it applies a rule that contradicts Supreme Court case law or if it reaches a conclusion different from the Supreme Court's in a case that involves facts that are materially indistinguishable.” Nevarez v. Barnes, 749 F.3d 1124, 1127 (9th Cir. 2014).
This highly deferential standard “demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Indeed, the AEDPA “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)). A federal court therefore must “avoid applying [the] AEDPA in a manner that displays ‘a lack of deference to the state court's determination and an improper intervention in state criminal processes.'” John-Charles v. California, 646 F.3d 1243, 1253 (9th Cir. 2011) (quoting Harrington, 562 U.S. at 104).
In a recent decision, the Supreme Court reaffirmed the deferential habeas standard and explained why the standard is “difficult to meet”:
The term “unreasonable” [in § 2254(d)] refers not to “ordinary error” or even to circumstances where the petitioner offers “a strong case for relief, ” but rather to “extreme malfunctions in the state criminal justice system.” In other words, a federal court may intrude on a State's “sovereign power to punish offenders” only when a decision “was so lacking in justification beyond any possibility for fairminded disagreement.”
Mays v. Hines, 141 S.Ct. 1145, 1149 (2021) (quoting Harrington, 562 U.S. at 102-03) (alterations omitted).
A. Procedural Default of Ground Two - Due Process Claim.
In Ground Two, Petitioner alleges that he has been imprisoned beyond the expiration of his sentence in violation of due process. He alleges that in 1992, the Arizona Legislature passed a law to bring sentences in line with Arizona's 1978 Truth-in-Sentencing law. Petitioner alleges that the 1978 law provided for the Board to review all 1956-Criminal-Code-sentenced prisoners to determine which code afforded the earliest mandatory release date, that his earliest mandatory release date was after serving 35...
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