Hollingsworth v. Shinn, CV-21-08168-PCT-DWL (ESW)

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
PartiesCurtis Benjamin Hollingsworth, Petitioner, v. David Shinn, et al., Respondents.
Docket NumberCV-21-08168-PCT-DWL (ESW)
Decision Date08 August 2022



Honorable Eileen S. Willett United States Magistrate Judge

Pending before the Court is Curtis Benjamin Hollingsworth's (Petitioner) “Petition under 28 U.S.C § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Doc. 1). Respondents have filed their Answer (Doc. 7), and Petitioner has filed a Reply (Doc 15). For the reasons explained herein, it is recommended that the Court (i) dismiss Ground Two as procedurally defaulted and (ii) deny Ground One, Three, and Four on the merits.


The Petition challenges Petitioner's Arizona state court convictions for kidnapping and assault.[1] As summarized by the Arizona Court of Appeals, the facts underlying Petitioner's convictions are as follows:

¶ 2 While driving his Buick in Cordes Lakes in December 2011, Hollingsworth followed the victim, a seventeen-year-old girl taking an evening walk. When the victim realized she was being followed, she ran and thought she was safe when she saw the Buick parked next to a store. But as she walked past a church parking lot, the Buick came towards her and, before she could run, Hollingsworth opened the driver's side door, grabbed her right wrist and told her to [g]et in my car.” Although he grabbed her hard enough to leave marks on her wrist, she broke free and ran into the front yard of a nearby house. Hollingsworth drove slowly by the front of the house, but sped away after the victim yelled at him.
¶ 3 The victim ran home, told her mother about the incident, and her mother called 9-1-1. The victim gave the deputy sheriff a detailed description of the Buick, including its license plate number. She also told the deputy that she saw the driver, and described the shirt he was wearing as either “yellow or cream-colored” with “dark stripes going down vertically,” and told the deputy that the driver had a beer belly.
¶ 4 The sheriff's office quickly traced the license plate to Hollingsworth, and a deputy went to Hollingsworth's house. The deputy saw a Buick that matched the description and the license plate number given by the victim parked in front of Hollingsworth's house. He touched the car, and the front grille area felt warm, which indicated that the car had been driven recently. Hollingsworth answered the front door wearing a shirt that matched the description of the shirt given by the victim. After getting a warrant, the deputies searched Hollingsworth's car, and found a box of condoms in the glove compartment.

(Doc. 7-17 at 96).[2] A jury trial began on June 27, 2012. (Doc. 7-1 at 29). The trial court subsequently declared a mistrial based on tainted and unduly suggestive pretrial identification made by the victim. (Doc. 7-7 at 27-32). Petitioner moved to dismiss the case with prejudice, which the trial court denied. (Doc. 7-9 at 60).

A second trial commenced on September 12, 2012. (Doc. 7-10 at 3). The kidnapping charge was tried before a jury. (Doc. 7-15 at 29). The misdemeanor assault charge was tried before the trial court. (Id.). On September 19, 2012, the jury found Petitioner guilty of kidnapping. (Id. at 33). The trial court found Petitioner guilty on the assault charge. (Id. at 30-31). After finding that Petitioner had two prior felony convictions, the trial court sentenced Petitioner to a total of twenty-two years in prison. (Doc. 7-16 at 10, 22).

Petitioner appealed his conviction and sentencing for kidnapping. (Doc. 7-16 at 27-79). On March 3, 2016, the Arizona Court of Appeals denied relief. (Doc. 7-17 at 105). The Arizona Supreme Court denied Petitioner's Petition for Review. (Id. at 133).

On January 23, 2017, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Id. at 135-37). Petitioner's PCR counsel filed a PCR Petition that presented an ineffective assistance of counsel claim asserting that his trial counsel failed to object to improper vouching by the prosecutor. (Id. at 139-51). After briefing, the trial court denied relief. (Id. at 178-79). The Arizona Court of Appeals affirmed the trial court's ruling on February 23, 2021. (Id. At 190).

In July 2021, Petitioner timely initiated this federal habeas proceeding. (Doc. 1). The Court screened the Petition and required Respondents to file an answer. (Doc. 4). Respondents filed their Answer (Doc. 7) on September 9, 2021. Petitioner filed a Reply (Doc. 15) on April 27, 2022.[3] In Section II of this Report and Recommendation, the undersigned finds that Ground Two is procedurally defaulted without excuse. Section III concludes that Grounds One, Three, and Four are meritless.

A. Legal Standards Regarding Procedurally Defaulted Habeas Claims
1. 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); see also Reed v. Ross, 468 U.S. 1, 11 (1984) ([W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.”) (citations and internal quotation marks omitted).

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 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). “It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted); see also Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (federal basis of a claim must be “explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds”).

2. 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...

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