Endreson v. Ryan

Full title: Robert Dean Endreson, Petitioner, v. Charles L. Ryan, et al., Respondent.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Date published: Oct 19, 2018

No. CV-18-1403-PHX-DGC (DMF) (D. Ariz. Oct. 19, 2018)

Opinion

No. CV-18-1403-PHX-DGC (DMF)

10-19-2018

Robert Dean Endreson, Petitioner, v. Charles L. Ryan, et al., Respondent.

Honorable Deborah M. Fine United States Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE DAVID G. CAMPBELL, SENIOR U.S. DISTRICT JUDGE:

On May 4, 2018, Petitioner Robert Dean Endreson ("Petitioner" or "Endreson"), who is confined in the Arizona State Prison Complex-Florence in Florence, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) ("Petition"). Respondents answered the Petition (Doc. 8), and Petitioner replied (Doc. 9). This matter is ripe for decision. This matter is on referral to the undersigned pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. As set forth below, the undersigned recommends that the Petition be denied and dismissed with prejudice.

I. Procedural History

A. Conviction, sentence, appeal, PCR proceedings, and previous habeas

Petitioner was convicted in Maricopa County Superior Court, case numbers CR- 54712 and CR-54669, of first-degree murders which both took place on March 12, 1968.¹ Although Petitioner was initially sentenced to death in each case, the Arizona Supreme Court later reduced his sentences to life imprisonment pursuant to Stewart v. Massachusetts, 408 U.S. 845 (1972), citing Furman v. Georgia, 408 U.S. 238 (1972). See State v. Endreson, 506 P.2d at 254; Doc. 8-1, Ex. A at 5, fn. 1; Doc. 8-1, Ex. B at 8-9. Petitioner asserts that he was 20 years old at the time of the murders (Doc. 1 at 6), and this appears to be uncontested (Doc. 8-3 at 58; Doc. 8 at 14).

1 State v. Endreson, 506 P.2d 248, 249 (1973); State v. Endreson, 498 P.2d 454, 455 (Ariz. 1972).

Petitioner filed a prior § 2254 Petition, CIV 96-00389-PHX-RCB, involving both cases and arguing that the Arizona Supreme Court had no authority to sentence him to life sentences under A.R.S. §13-453 given that the death penalty provision of that statute had been found unconstitutional (Doc. 8-1, Ex. B at 4-11). Although the District Court denied Petitioner relief on procedural grounds and went on to state that the habeas claim "is wholly without merit," the judgment states that the Petition was dismissed without prejudice (Doc. 8-1, Ex. B at 10; Doc. 8-1, Ex. B at 7).² The Ninth Circuit affirmed the decision of the District Court (Doc. 8-1, Ex. B at 14-15).

2 Because of the dismissal without prejudice, the current § 2254 Petition is not considered a second or successive petition. See Slack v. McDaniel, 529 U.S. 473, 485-486 (2000) (habeas petition which is filed after a prior habeas petition was dismissed without adjudication on the merits for failure to exhaust state remedies is not a second or successive petition).

On August 28, 2013, the state superior court sua sponte appointed counsel and initiated a post-conviction proceeding to address the effect of Miller v. Alabama, 567 U.S. 460 (2012), on Endreson (Doc. 8-1, Ex. D at 17-19).³ After briefing, the superior court determined that Miller applied retroactively, but denied relief for Endreson (Doc. 8-3, Ex. H at 24-30):

3 Respondents assert that the post-conviction proceeding related to only one of two of Endreson's cases, CR-54712, and, thus, Endreson's Petition should not be considered for CR-54669 (Doc. 8 at 2, fn. 1). Yet, the same exact issue arises from the sentence in CR-54669. The District Court's Order in the 1996 habeas proceeding noted that Respondents had not been able to find their files for the CR-54669 case (Doc. 8-1, Ex. B at 9). The age of the underlying convictions presents records issues that should not be construed against Petitioner (see Doc. 8 at 4, "Respondents report that the Attorney General's file in these ancient cases could not be located... Respondents did not attempt to sift through 50-year old files in various courts to obtain exhibits"; Rule 5(d), of the Rules Governing §2255 cases). Undersigned disagrees with Respondents and will construe the post-conviction proceedings as applied to both case numbers CR-54712 and CR-54669 for exhaustion purposes.

This Court appreciates that there was a time in the past that the legal definition of a minor was a person under the age of 21 years and it was this definition that existed when [Petitioner] was sentenced. That does not however, suggest that a person [like Petitioner] who was above 18 and below 21 years of age at the time of the offense is entitled to the same consideration of age as would apply to an offender under the age of 18 years. The relied upon research was not based upon legal definitions of adult versus juvenile status but rather, was based upon under versus over the age of 18 years of age at the time of the offense.

(Doc. 8-3, Ex. H at 29).

The Arizona Court of Appeals granted review and denied relief, agreeing with the superior court's holding and reasoning:

We grant review, but deny relief. Miller is a significant change in the law and is retroactive. Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718, 736 (2016); State v. Valencia, 239 Ariz. 255, 259, ¶ 17 (App. 2016). Miller, however, has no application to Endreson's case. Although Miller does make frequent reference to "children" and "juveniles," the Court ultimately held, "We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crime violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" Miller, 132 S.Ct. at 2460 (emphasis added). In other words, Miller placed a constitutional limitation on the states' authority to sentence offenders who committed their offenses when they were under the age of 18, not offenders who committed their offenses before they reached the age of majority as that may be defined by each individual state.

That the Supreme Court intended to draw the line at 18 years of age in Miller is made clear by earlier decisions that likewise established constitutional limitations on the sentencing of juvenile offenders. In Graham v. Florida, 560 U.S. 48, 74-75 (2010), the Court held a juvenile offender who did not commit homicide may not receive a sentence of life imprisonment without the possibility of parole. As in Miller, the Court in Graham made frequent reference to "juvenile offenders" in general, but drew a "clear line" to differentiate between who is and who is not a "juvenile offender." Id. at

74. The Court expressly held, "Because '[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood,' those who were below that age when the offense was committed may not be sentenced to life without parole for a nonhomicide crime." Id. at 74-75 (quoting Roper v. Simmons, 543 U.S. 551, 574 (2005)). In Roper, the Court held states could not impose the death penalty for offenders it repeatedly identified as "juvenile offenders under 18." 543 U.S. at 568-74. Because Endreson was over 18 when he committed his offense, the superior court correctly concluded that Miller provides no basis for granting him relief from his life sentence.

(Doc. 8-3, Ex. H at 57). The court of appeals also found that the superior court's failure to hold an evidentiary hearing was not a due process violation because the only issues were legal issues, under Miller, and the application of the law to undisputed facts; the court of appeals also noted that the legal issue was adequately briefed in the court of appeals briefing (Doc. 8-3, Ex. H. at 57-58).

The Arizona Supreme Court denied review (Doc. 8-3, Ex. H at 74), and the court of appeals issued the mandate on May 23, 2017 (Doc. 8-3, Ex. H at 76). Respondents acknowledge that the Petition was timely filed (Doc. 8 at 4).

B. This Petition

The Petition names Charles Ryan as Respondent and the Arizona Attorney General as an Additional Respondent. Petitioner raises four grounds for relief. ⁴ Grounds One through Three are the same; Petitioner asserts in each that he received an illegal sentence, in violation of the Fifth, Eighth, and Fourteenth Amendment, because he was a "juvenile by law" and, therefore, his life-without-parole sentences violate Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). Petitioner argues that he is a "juvenile by law" because he was 20 years old when he committed the murders, and, at that time, the age of majority in Arizona was 21.

4 Petitioner included various exhibits and partial exhibits in the middle of his Petition, despite the instructions included with the court-approved § 2254 petition specifically directing not to do so. The Court notes that Petitioner's grounds for relief are set forth on pages 6, 18, 24, and 30-31 of the Petition (Doc. 1).

In Ground Four, Petitioner asserts that he is entitled to relief under Miller and Montgomery and also includes language that the State was not justified in sentencing him "to a life sentence and not allow[ing] a parole board hearing" (Doc. 1 at 30). It is unclear whether this is an attempt to add a different ground from the Miller issue of whether Petitioner received an illegal sentence given that he was 20 years old at the time of the murders and Arizona's age of majority at the time was 21.⁵

5 Petitioner appears to be one of the "old code lifers" who are caught between the old statutory scheme when they were sentenced and an amended statutory scheme for offenders after 1973 that allows parole after service of 25 years; the only state law path for these 38 "old code" prisoners to ever be released appears to be through the rarely used commutation procedure (see Doc. 9-2 at 27-29). Even if this "old code" issue could be brought in a federal habeas action, as discussed infra, this and any other nonMiller issue raised was not exhausted and is procedurally defaulted without excuse.

II. Exhaustion of remedies and procedural default without excuse

A. Applicable law

A state prisoner must properly exhaust all state court remedies before this Court can grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9^th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9^th Cir. 1994). To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Duncan, 513 U.S. at 365-66.

A claim can also be subject to an express or implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9^th Cir. 2010). An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar "that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision." Harris v. Reed, 489 U.S. 255, 260 (1989). Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's "Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits"); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) ("adequate" grounds exist when a state strictly or regularly follows its procedural rule). See also Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Robinson, 595 F.3d at 1100. An implied procedural bar exists if a claim was not fairly presented in state court and no state remedies remain available to the petitioner. Teague v. Lane, 489 U.S. 288, 298-99 (1989); Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 975, 987 (9^th Cir. 2002); Poland v. Stewart, 169 F.3d 573, 586 (9^th Cir. 1999); White v. Lewis, 874 F.2d 599, 602 (9^th Cir. 1989). This Court can review a procedurally defaulted claim if the petitioner can demonstrate either cause for the default and actual prejudice to excuse the default, or a miscarriage of justice. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986); States v. Frady, 456 U.S. 152, 167-68 (1982).

B. Analysis

To the extent that Petitioner raises any claim outside of Miller's application to him, such claim is procedurally defaulted without excuse because Petitioner did not exhaust such claim and an implied procedural bar now exists to prevent him from doing so. To meet the exhaustion requirement, Petitioner needed to fairly present his claims to the Arizona Court of Appeals by providing the facts underlying his claim and the federal basis of those claims. Petitioner only did do so for Miller's application to him.⁶

6 Petitioner's exhausted claims regarding Miller's application to him are whether Petitioner received illegal sentences given that he was 20 years old at the time of the murders and Arizona's age of majority at the time was 21 as well as the failure of the post-conviction court to hold an evidentiary hearing on this issue.

In addition, any claim by Petitioner outside of Miller's application to him is now subject to an implied procedural bar because his claims were not fairly presented in state court and no state remedies remain available to him because he is now precluded or time-barred from raising his claims in a successive and untimely Rule 32 petition under Arizona Rules of Criminal Procedure 32.1(d)-(h), 32.2(a) & (b), or 32.4(a). Petitioner has not demonstrated either cause for the default and actual prejudice to excuse the default, or a miscarriage of justice as defined and delineated under applicable habeas law. Accordingly, the Court cannot review any claim by Petitioner outside of Miller's application to his life sentences. Miller's application to Petitioner's sentences, in contrast, has been properly raised in the state courts and the Court will consider the merits of such.⁷

7 See supra note 3.

III. Merits

A. Applicable law - standard of review

The Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court proceedings unless the state court reached a decision which was contrary to clearly established federal law, or the state court decision was an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d); Davis v. Ayala, 135 S.Ct. 2187, 2198-99 (2015); Musladin v. Lamarque, 555 F.3d 834, 838 (9^th Cir. 2009).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires that the habeas court "review the 'last reasoned decision' from the state court, which means that when the final state court decision contains no reasoning, we may look to the last decision from the state court that provides a reasoned explanation of the issue." Murray v. Schriro, 746 F.3d 418, 441 (9^th Cir. 2014) (quoting Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9^th Cir. 2000)).

Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions. And an unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice. Rather, as a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.

White v. Woodall, 572 U.S. 415, 419-20 (2014) (internal citations and quotations omitted). See also Arrendondo v. Neven, 763 F.3d 1122, 1133-34 (9^th Cir. 2014).

Recognizing the duty and ability of our state-court colleagues to adjudicate

claims of constitutional wrong, AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court. AEDPA requires "a state prisoner [to] show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error ... beyond any possibility for fair minded disagreement." Harrington v. Richter, [ ] 131 S.Ct. 770, 786-787, [ ] (2011). "If this standard is difficult to meet"—and it is—"that is because it was meant to be." [ ] 131 S.Ct., at 786. We will not lightly conclude that a State's criminal justice system has experienced the "extreme malfunctio[n]" for which federal habeas relief is the remedy. Id., at —, 131 S.Ct., at 786 (internal quotation marks omitted).

Burt v. Titlow, 571 U.S. 12, 19-20 (2013).

A state court decision is contrary to federal law if it applied a rule contradicting the governing law as stated in United States Supreme Court opinions, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. Brown v. Payton, 544 U.S. 133, 141 (2005).

A state court decision involves an unreasonable application of clearly established federal law if it correctly identifies a governing rule but applies it to a new set of facts in a way that is objectively unreasonable, or if it extends, or fails to extend, a clearly established legal principle to a new set of facts in a way that is objectively unreasonable. See McNeal v. Adams, 623 F.3d 1283, 1287-88 (9^th Cir. 2010). The state court's determination of a habeas claim may be set aside under the unreasonable application prong if, under clearly established federal law, the state court was "unreasonable in refusing to extend [a] governing legal principle to a context in which the principle should have controlled." Ramdass v. Angelone, 530 U.S. 156, 166 (2000). However, the state court's decision is an unreasonable application of clearly established federal law only if it can be considered objectively unreasonable. See Renico v. Lett, 559 U.S. 766, 773 (2010). An unreasonable application of law is different from an incorrect one. See id.; Cooks v. Newland, 395 F.3d 1077, 1080 (9^th Cir. 2005). "That test is an objective one and does not permit a court to grant relief simply because the state court might have incorrectly applied federal law to the facts of a certain case." Adamson v. Cathel, 633 F.3d 248, 255-56 (3^rd Cir. 2011); see also Howard v. Clark, 608 F.3d 563, 567-68 (9^th Cir. 2010).

Factual findings of a state court are presumed to be correct and can be reversed by a federal habeas court only when the federal court is presented with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015). The "presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact." Sumner v. Mata, 455 U.S. 591, 593 (1982). See also Phillips v. Ornoski, 673 F.3d 1168, 1202 n.13 (9^th Cir. 2012).

Additionally, the United States Supreme Court has held that, with regard to claims adjudicated on the merits in the state courts, "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 180 (2011). See also Murray, 745 F.3d at 998. Pursuant to section 2254(d)(2), the "unreasonable determination" clause, "a state-court's factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Clark v. Arnold, 769 F.3d 711, 724-25 (9^th Cir. 2014) (quoting Burt, 134 S.Ct. at 18).

B. Merits of Petitioner's claims for relief

In June 25, 2012, the United States Supreme Court decided Miller v. Alabama, and held "that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" 567 U.S. at 465. In Miller, the Supreme Court did not foreclose the imposition of life without parole on an under 18 years of age homicide defendant, but explained that a judge's exercise of discretion in imposing such a sentence must "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 479-80. On January 25, 2016, the Supreme Court decided Montgomery v. Louisiana, 136 S.Ct. 718, 737 (2016), and held that Miller announced a new, substantive rule of law that was retroactive on collateral review.

As recounted by the Arizona Court of Appeals in Petitioner's case, Miller and the precedent on which Miller was based, Graham and Roper, were based on an age drawn line of 18 years between adults and juveniles for purposes of criminal sentencing. Graham v. Florida, 560 U.S. 48 (2010); Roper v. Simmons, 543 U.S. 551 (2005). There is no clearly established Supreme Court precedent holding that a life sentence without the possibility for parole for a twenty year old violates the Eighth Amendment. There is no clearly established Supreme Court precedent holding that a life sentence without the possibility for parole for a person over 18 years of age and not of the state's age of majority violates the Eighth Amendment. Thus, the appellate court reasonably concluded that Petitioner was not entitled to relief under Miller. The Arizona Court of Appeals' decision is not contrary to or based on unreasonable application of clearly established Supreme Court precedent. See Harrington v Richter, 562 U.S. 86, 101, 131 (2011) (stating that "[i]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme Court]."); White v. Woodall, 572 U.S. 415, 426 (2014) ("'[I]f a habeas court must extend a rationale before it can apply to the facts at hand,' then by definition the rationale was not 'clearly established at the time of the state-court decision.' ") (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

Finally, any assertion that Petitioner's due process rights were violated because the post-conviction court did not conducting an evidentiary hearing is also without merit. The Arizona courts, both post-conviction and court of appeals, assumed the facts were as Petitioner presents them; that is, Petitioner was 20 years old and Arizona law defined the age of majority as 21 years at the time of the murders (Doc. 8-3, Ex. H at 28, Ex. K at 56-57).⁸ After review of the record submitted, undersigned concludes that the court of appeals decision that Petitioner was not denied due process by the post-conviction court's failure to hold an evidentiary hearing (Doc. 8-3, Ex. K at 57-58) was not contrary to clearly established federal law, nor was the decision an unreasonable application of clearly established federal law.

8 "Here, Defendant was 20 years of age at the time of the offense. When the offense was committed in 1968, the law considered any person under the age of 21 years to be a minor. Therefore, if Miller focus juvenile versus adult status [rather than age], it is arguable that Defendant should be afforded the protections of the law" (Doc. 8-3, Ex. H at 28).

IV. Petitioner's motion for discovery

Petitioner has filed a motion for discovery (Doc. 10), stating that the requested discovery "will make the case more accessible." Petitioner appears to seek documents from the sentencing and resentencing in his case, Arizona legislative documents and Arizona laws relating to the change in Arizona law for age of majority as it existed at the time of his convictions and as it developed, Arizona Department of corrections records showing Petitioner's programs and jobs while incarcerated, and Petitioner's medical records while incarcerated.

A court considering a habeas corpus petition is ordinarily limited to the state court record. See Cullen v. Pinholster, 563 U.S. 170, 180 (2011) (holding that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits"). Yet, under Rule 6(a) of the Rules Governing § 2254 Cases, a court may grant a habeas petitioner's discovery request upon a showing of good cause. Bracy v. Gramley, 520 U.S. 899, 904 (1997). Good cause exists "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is entitled to relief." Id. at 908-09. Here, given the analysis above, Petitioner will not be able to demonstrate that he is entitled to relief with the discovery he requests. Therefore, it is recommended that the motion be denied.

Accordingly,

IT IS THEREFORE RECOMMENDED that the Petition be denied and dismissed with prejudice.

IT IS FURTHER RECOMMENDED that Petitioner's motion for discovery (Doc. 10) be denied.

IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied and leave to proceed in forma pauperis on appeal be denied because Petitioner has not "made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and jurists of reason would not find the Court's assessment of Petitioner's constitutional claims "debatable or wrong," Slack v. McDaniel, 529 U.S. 473, 484 (2000).

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9^th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.

Dated this 19th day of October, 2018.

/s/_________

Honorable Deborah M. Fine

United States Magistrate Judge