Vera v. Shinn
| Decision Date | 15 April 2021 |
| Docket Number | CV-15-00613-TUC-JCH (DTF) |
| Parties | Ronnie Roy Vera, Petitioner, v. David Shinn, Respondent. |
| Court | U.S. District Court — District of Arizona |
REPORT AND RECOMMENDATION
Before the Court is Petitioner Ronnie Vera's motion for reconsideration (Doc. 96). The motion for reconsideration is fully briefed. (Docs. 96, 102, 104.) This matter has been referred to United States Magistrate Judge D. Thomas Ferraro for report and recommendation. (Doc. 99.) As more fully set forth below, it is recommended that the district court, after its independent review deny the motion for reconsideration (Doc. 96).
Much of the background is known to the parties and is in previous orders. The Court will update the background and procedural history and refer to it as necessary.
In September 2016, Petitioner filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc 22.) He argued that his sentence violated the United States Constitution. (Doc. 22.) In September 2017, Judge Frank Zapata found that A.R.S. § 13-716 was an ex post facto law and ordered these proceedings stayed “until the State of Arizona remedies Ronnie Vera's current unconstitutional custody.” (Doc. 41 at 4-5; Doc. 43 at 3-4.)
Respondent appealed to the United States Court of Appeals for the Ninth Circuit. (Doc. 47.) The Ninth Circuit reversed and remanded to the district court. (Doc. 75-1.) The Ninth Circuit concluded that Miller v. Alabama, 567 U.S. 460 (2012), “does not require any consideration of Vera's status as a juvenile offender before imposing” a sentence of life in prison with the possibility of parole after twenty-five years. (Doc. 75-1 at 3.) Further, the Ninth Circuit concluded that § 13-716 did not violate the Ex Post Facto Clause because the sentence caused by the statute was not harsher than the original sentence. Id. at 3-5. However, this matter was remanded to determine if there was a process through which Petitioner could seek parole in accordance with Miller and Montgomery v. Louisiana, 577 U.S. 190 (2016). (Doc. 75-1 at 5.) The Ninth Circuit had “requested supplemental briefing on the question of whether § 13-716, as implemented by the Arizona Department of Corrections, actually provides an opportunity for Vera to obtain parole within the meaning of Miller and Montgomery.” Id. The Ninth Circuit was “not persuaded that it does however, further factual development is required, and remand[ed] for the district court's consideration in the first instance, with the district court directed to allow amendment of the petition as necessary.” Id. It also denied Petitioner's motion for bail without prejudice permitting “renewal of the motion before the district court.” Id. at 5 n.2.
After the Ninth Circuit issued its ruling, Petitioner filed a motion for expedited hearing and release from custody. (Doc. 73.) He argued that he had a high probability of success on the merits, that he would be irreparably harmed by continued imprisonment, that release would not substantially injure the state, and that the public interest supported his release. (Doc. 73 at 5-10.) Respondent argued that this Court lacked authority to release Petitioner on bail and that Petitioner had not shown that this case involved special circumstances. (Doc. 76 at 3-4.) Further, Respondent argued that Petitioner's claims did not have a high probability of success because they were inexcusably procedurally barred, not yet ripe, and not meritorious. Id. at 5, 9-10.
In May 2020, this Court filed a Report and Recommendation to the district court recommending that it deny Petitioner's motion for release from custody, assuming it had authority to release Petitioner. (Doc. 79.) Specifically, this Court concluded that the claim was not yet ripe and that Petitioner had not presented special circumstances. (Doc. 79 at 5-7.) Petitioner supplemented his motion and objected to the Report and Recommendation. (Docs. 82, 83, 85, 87, 92, 94.)[1]
On September 11, 2020, the district court adopted the Report and Recommendation. (Doc. 95.) On September 14, 2020, the Arizona Board of Executive Clemency (BOEC) conducted Petitioner's parole hearing and denied his request for parole. (98 at 8, 38.) On September 28, 2020, Petitioner filed his motion for reconsideration before this Court. (Doc. 96.)
Motions for reconsideration are disfavored. See Defs. of Wildlife v. Browner, 909 F.Supp. 1342, 1351 (D. Ariz. 1995). Courts will generally “deny a motion for reconsideration . . . absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1).
“In the habeas context, this court has reserved bail for ‘extraordinary cases involving special circumstances or a high probability of success.'” United States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994), as amended (Feb. 8, 1995) (quoting Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989)). The Ninth Circuit has not resolved whether the district court may grant release pending resolution of a habeas corpus petition. See In re Roe, 257 F.3d 1077, 1080 (9th Cir. 2001) ().
Assuming the district court has jurisdiction, the release of a habeas petitioner is governed by Rule 23, Fed. R. App. P. See Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir. 1987). Additional factors to be considered include:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Here Petitioner has presented a factual change that could not have been presented with his original motion. (Doc. 96.) The Arizona BOEC conducted Petitioner's parole hearing and denied his request for parole. (98 at 8, 38.) Accordingly, it is appropriate to reconsider the previous order. However, assuming the district court has the authority to release Petitioner pending a decision on his amended habeas petition, this Court determines that it is not appropriate for the district court to exercise that authority in this case as explained below.
Petitioner focuses on his claim that Arizona's parole system fails to comply with the Eighth Amendment, particularly Miller and Montgomery. (Doc. 73 at 3 n.2, 5; Doc. 96 at 6.) Accordingly, the Court shall do the same. Previously, this Court and the district court concluded that Petitioner's claims were not yet ripe. Respondent concedes that this claim is now ripe. (Doc. 102 at 2.)
Likelihood of success requires courts to consider if the claim has been properly exhausted in the state court or if the claim is technically exhausted but procedurally defaulted. See Curtis v. Shinn, No. CV-20-08098-PCT-JJT (DMF), 2021 WL 424078, at *1 (D. Ariz. Feb. 8, 2021); Magnuson v. Ontiveros, No. CV-06-3045-PHX-ROS, 2008 WL 881572, at *3 (Mar. 28, 2008); cf. Esry v. Escapule, No. CV-13-02028-PHX-SRB, 2014 WL 3067082, at *11 (D. Ariz. July 7, 2014) ().
Respondent asserts that Petitioner failed to exhaust his claim. (Doc 102 at 3, 5.) Petitioner responds that he exhausted the claim before the Arizona Court of Appeals in 2014. (Doc. 104 at 5 (citing Doc. 34-1 at 32).) Further, Petitioner contends that even if the matter were unexhausted, it should be excused from the requirement. Id. at 6-7.
Before a federal court may consider a habeas claim under 28 U.S.C. § 2254, the petitioner is generally required to exhaust the claim before the state courts. § 2254(b)(1). This permits state courts a full opportunity to correct a constitutional violation and prevents disruption of state proceedings. See Rose v. Lundy, 455 U.S. 509, 518 (1982).
To exhaust a claim, the petitioner must “fairly present” the claim in each appropriate state court, alerting the court to the federal nature of the claim. Baldwin v. Reese, 541 U.S. 27, 29 (2004). In Arizona, a claim not involving a life sentence or death penalty is exhausted if it is presented to the Arizona Court of Appeals; it need not be appealed to the Arizona Supreme Court. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). The state court must be sufficiently put on notice of the claim. Davis v. Silva, 511 F.3d 1005, 1009-11 (9th Cir. 2008). To fairly present a claim, the petitioner must have clearly stated the federal basis and federal nature of the claim, along with relevant facts, and the claim must be the “substantial equivalent” to the one presented to the state. Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011); see Picard v. Connor, 404 U.S. 270, 278 (1971). If evidence puts the case in significantly different legal or evidentiary posture, the state must have an opportunity to examine the case. Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014).
There are several excuses from the requirement to exhaust. First if there is no corrective process available at the state, § 2254(b)(1)(B)(i), or the circumstances render a process ineffective, § 2254(b)(1)(B)(ii). “State-court remedies are described as having been ‘exhausted' when they are no longer available, regardless of the reason for their unavailability.” Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). No. corrective process means that there is no further avenue available for obtaining state relief. ...
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