Carlos Castillo v. Charles Ryan

FILED
NOT FOR PUBLICATION MAY 13 2015

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS VEGA CASTILLO, No. 13-16575

Petitioner - Appellant, D.C. No. 4:11-cv-00571-JGZ

v.
MEMORANDUM*
CHARLES L. RYAN and ATTORNEY
GENERAL OF THE STATE OF
ARIZONA,

Respondents - Appellees.

Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding

Submitted May 11, 2015**
San Francisco, California

Before: THOMAS, Chief Judge, and BENAVIDES*** and OWENS, Circuit
Judges.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
Arizona state prisoner Carlos Castillo appeals the denial of his 28 U.S.C.

§ 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253. We review

de novo the district court’s decision to deny his habeas petition, see Clabourne v.

Ryan, 745 F.3d 362, 370 (9th Cir. 2014), and we affirm.1

The district court concluded that all three of Castillo’s claims were

procedurally defaulted. Castillo argues that this ruling was erroneous for four

reasons: (1) he fairly presented his postconviction ineffective assistance claim to

the state courts; (2) the Arizona Court of Appeals did not expressly rely on Arizona

Rule of Criminal Procedure 32.2(a)(3) to deny any of his claims; (3) Rule

32.2(a)(3) is too unclear to serve as an independent and adequate state ground; and

(4) there is cause and prejudice to excuse any default. Though we agree with

Castillo that the certificate of appealability encompasses these arguments, see

Koerner v. Grigas, 328 F.3d 1039, 1048-49 & n.3 (9th Cir. 2003), we reject all

four contentions.

1. Putting aside whether Castillo properly presented a postconviction

ineffective assistance claim to the state courts or the district court, he does not have

such a claim because he chose to represent himself. See Cook v. Ryan, 688 F.3d

598, 609-10 (9th Cir. 2012) (citing Faretta v. California, 422 U.S. 806, 834 n.46

1
Appellant’s motion to modify the district court record is denied as moot.

2
(1975)). Even if his appointed counsel performed deficiently prior to being

relieved of his duties, Castillo “could have corrected those errors once he decided

to represent himself. Faretta therefore precludes [Castillo] from complaining

about the ‘quality of his own defense.’” Id. at 609.

2. A fair reading of the Arizona Court of Appeals’s decision readily

indicates that it expressly relied upon Rule 32.2(a)(3) to deny Castillo’s claims.

The Court of Appeals also addressed the applicability of the “sufficient

constitutional magnitude” exception by citing relevant case law and incorporating

the superior court’s decision, see Lewis v. Lewis, 321 F.3d 824, 829 (9th Cir.

2003).

3. This court has consistently held that Rule 32.2(a)(3) is an adequate

and independent state ground. See Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir.

2014); see also Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (collecting

cases). “Similarly, the Supreme Court has recognized Arizona Rule of Criminal

Procedure 32.2(a)(3) as an independent and adequate state ground that bars federal

habeas review of constitutional claims.” Murray, 745 F.3d at 1016 (citing Stewart

v. Smith, 536 U.S. 856, 861 (2002) (per curiam)). Even if this precedent is not

dispositive, the “sufficient constitutional magnitude” exception does not render

Rule 32.2(a)(3) so unclear as to “not provide petitioners with sufficient notice of

3
how they may avoid violating the rule.” King v. LaMarque, 464 F.3d 963, 966

(9th Cir. 2006). Castillo could have easily complied with Rule 32.2(a)(3) by

presenting all of his claims in his first petition for post-conviction relief, so there is

nothing “grossly unfair” about its application in this case, see Calderon v. U.S.

Dist. Court, 96 F.3d 1126, 1129 (9th Cir. 1996). Castillo is also wrong to suggest

that Rule 32.2(a)(3) is categorically inadequate because its exact contours have yet

to be defined. See Walker v. Martin, 131 S. Ct. 1120, 1130-31 (2011).

4. Assuming, without deciding, that Castillo has established cause to

excuse his procedural default, he cannot show prejudice. Though his lifetime

probation term was invalid under State v. Peek, 195 P.3d 641 (Ariz. 2008) (en

banc), this error was harmless because his probation was revoked only a year after

he was released from prison. Even if he had received the proper five-year term of

probation in 1998, the result would have been the same; he still would have been

on probation when the petition to revoke was filed in October 2007.

AFFIRMED.