Marrero v. Thornell

Docket NumberCV-20-00503-DCB-BGM
Decision Date03 May 2023
PartiesMark Angel Marrero, Jr., Petitioner, v. Ryan Thornell,[1] et al ., Respondents.
CourtU.S. District Court — District of Arizona

REPORT AND RECOMMENDATION

Honorable Bruce G. Macdonald United States Magistrate Judge

Pending before the Court is Petitioner Mark Angel Marrero, Jr.'s Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254 (“Petition”) (Doc. 1). Respondents have filed an Answer to Petition for Writ of Habeas Corpus (“Answer”) limited to affirmative defenses (Doc 7), and Petitioner has not replied. The Petition (Doc. 1) is ripe for adjudication.

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (“LRCiv”),[2]this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. (Doc. 3.)

The Magistrate Judge recommends the District Judge dismiss the Petition (Doc. 1).

I. INTRODUCTION

Based on two armed home invasions with multiple victims, including children, a jury found Petitioner Mark Angel Marrero, Jr. guilty of sixteen counts of kidnapping, six counts each of armed robbery and aggravated robbery, eight counts each of aggravated assault with a deadly weapon and aggravated assault of a minor under 15 years of age with a deadly weapon, two counts each of first-degree burglary and impersonating a peace officer, and four counts of possession of a deadly weapon by a prohibited possessor. In his Petition for Writ of Habeas Corpus, Marrero asserts violations of his Fourteenth Amendment due process rights by the trial court's preclusion of some of his alleged third-party culpability evidence, and the State's failure to disclose purported exculpatory evidence in contravention of Brady v. Maryland, 373 U.S. 83 (1963). The Court finds Marrrero is not entitled to habeas relief because his claims are procedurally defaulted without excuse and/or not cognizable in federal habeas.[3]

II. STATEMENT OF TRANSCRIPTS AND RECORDS

Pursuant to Rule 5 of the Rules Governing 28 U.S.C. § 2254 cases, Respondents submitted as exhibits the following portions of the state court records: (1) all relevant pleadings and court orders in Pima County Superior Court cause number CR 2013-1507001 (Exhs. A through F); (2) all relevant pleadings and court orders from Marrero's direct appeal (Exhs. G through N); and (3) all relevant pleadings and court orders from Marrero's proceeding for post-conviction relief (PCR) pursuant to Rule 32 of the Arizona Rules of Criminal Procedure (Exhs. O through W). Respondents possess, but have not reproduced the following transcripts: (1) pre-trial hearings dated August 29, 2014; September 2, 4, 15, and 30, 2014; and October 3 and 10, 2014; (2) the initial first day of trial that ended in mistrial dated October 1, 2014; (3) trial transcripts dated October 14, 15, 16, 17, 21, 22, 23, and 24, 2014; and (4) post-trial hearings dated January 12, February 23, May 11 and 22, and August 31, 2015.

III. FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to 28 U.S.C. § 2254(e)(1), “a determination of a factual issue made by a state court shall be presumed to be correct.” That includes findings of fact by an appellate court. Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012). Viewing the evidence in the light most favorable to upholding the jury's verdicts, State v. Boozer, 212 P.3d 939, 939, ¶ 2 (Ariz. App. 2009), the Arizona Court of Appeals found the facts as follows:

On the night of March 19, 2014, H.T. woke up to the sound of “the footsteps of many people running toward the house saying they were police officers.” He looked out his window and saw a vehicle that had “police type lights” that flashed “red and blue.” Four or five men entered his home through the window and forced him and his wife at gunpoint to lie down on a bed. The intruders threatened several members of the family at gunpoint while taking money and documents. They then forced H.T. and everyone else in the house into the bathroom and told them that if they left, they would be shot.
On March 26, 2014, M.A. was returning home after picking up his children from school. As he walked into his yard, he saw “an unmarked police car with flashing lights.” The men who got out of the car claimed to be “D.E.A.” and stated that “there were drugs in the house.” M.A. asked if they had a search warrant, and M.A.'s son began yelling at the men. At that point, one of the men drew a gun, pointed it at M.A.'s son, took M.A.'s keys, and entered the house. The intruders forced M.A.'s children on their knees in a bedroom and pointed guns at them. The men took about $2,200, some “historic bills that M.A. collected, jewelry, and two guns. As they were leaving, one of the men took M.A.'s daughter at gunpoint, told M.A. not to follow them, and went outside. M.A. found his daughter outside shortly after they left.
On March 29, 2014, an officer with the Tucson Police Department stopped Marrero's vehicle for a window tint violation. Marrero initially provided a false name and claimed to not have identification. Because there was no record of a driver's license under the name and date of birth Marrero provided, and Marrero claimed he did not have a driver's license, the officer decided to impound the car. The officer searched the car and found two handguns, one of which matched the gun stolen from M.A. in brand, color, and serial number. In a later interview with a detective, Marrero claimed to have information about “red and blue lights.”

Doc. 7-2 at 149-150, Exh. L at ¶¶ 2-4.

A grand jury charged Marrero with 75 felonies. (Doc. 7-1 at 3-13, Exh. A.) On the eighth day of trial, the State dismissed five of the charges, and the jury acquitted Marrero of 21 charges and found him guilty of the remaining charges. (Doc. 7-1 at 15-22, Exh. B.) The state trial court sentenced him to a combination of concurrent and consecutive prison terms totaling 269.5 years. (Doc. 7-1 at 24-28, Exh. C.) Marrero later filed a motion to vacate judgment pursuant to Rule 24.2(a)(2) of the Arizona Rules of Criminal Procedure based on purported newly discovered evidence that he argued established Brady violations. (Doc. 7-1 at 56-72, Exh. E.) The trial court denied Marrero's motion. (Doc. 71 at 74-77, Exh. F.)

A. Direct appeal.

Marrero filed a timely notice of appeal. (Doc. 7-1 at 53-54, Exh. D.) In his opening brief, Marrero asserted challenges to four of the state trial court's suppression rulings. (Doc. 7-1 at 79-138, Exh. G at 27, 32, 39, 41.) He also argued that the state trial court erred in three of its evidentiary rulings, denying his motion to vacate judgment, imposing sentence, and ordering him to register pursuant to A.R.S. § 13-3821. (Doc. 7-1, Exh. G at 35, 38, 43, 46, 49, 50.) The Arizona Court of Appeals affirmed Marrero's convictions and sentences. (Doc. 7-2 at 148-159, Exh. L.) The Arizona Supreme Court denied his petition for review without comment. (Doc. 7-2 at 161, Exh. M.)

B. PCR proceeding.

Marrero filed a timely PCR notice, and the state PCR court appointed counsel to represent him. (Doc. 7-2 at 167-169, 171-172, Exhs. O, P.) In his PCR petition, Marrero asserted six claims of ineffective assistance of counsel and a substantive change in the law. (Doc. 7-3 at 3-48, Exh. Q.) The state PCR court addressed the merits of Marrero's claims, found that he had failed to present a colorable claim for relief, and dismissed the petition without a hearing. (Doc. 7-3 at 124-134, Exh. T.) Except for one IAC claim, Marrero reasserted the same claims in his petition for review to the Arizona Court of Appeals. (Doc. 7-4 at 3-80, Exh. U.) The appellate court granted review, analyzed Marrero's claims on their merits, and denied relief. (Doc. 7-4 at 82-86, Exh. V.) Marrero did not seek review in the Arizona Supreme Court. (Doc. 7-4 at 88, Exh. W.)

IV. EXHAUSTION/PROCEDURAL DEFAULT.
A. The exhaustion requirement.

Generally, a federal court may only consider a petitioner's application for a writ of habeas corpus if “the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); see Coleman v. Thompson, 501 U.S. 722, 731 (1991); Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008).

Proper exhaustion requires a petitioner to fairly present his federal claims to the trial level and to “invok[e] one complete round of the State's established appellate review process,” presenting the same federal claim to each court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Wooten, 540 F.3d at 1025 (“The rule of exhaustion requires that a habeas petitioner ‘fairly present' his federal claims to each appropriate state court.”).

In Arizona, a prisoner does not exhaust a claim for federal review in a non-capital case unless he has presented it to the Arizona Court of Appeals. Castillo v. McFadden, 399 F.3d 993, 998 n.3 (9th Cir. 2005); Swoopes v. Sublett, 196 F.3d 1008, 1010-11 (9th Cir. 1999). A claim is “fairly present[ed] only when a petitioner “clearly state[s] the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.”).

It is not enough, for example, 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) (internal citation omitted). [T]he petitioner must make the federal basis of the claim explicit either...

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