Opinion
CV 23-00925 PHX GMS (CDB)
02-27-2024
David Edward Davis, Petitioner, v. Ryan Thornell, Attorney General of the State of Arizona, Respondents.
REPORT AND RECOMMENDATION
Camille D. Bibles, United States Magistrate Judge
TO THE HONORABLE G. MURRAY SNOW:
Petitioner David Davis seeks federal habeas relief pursuant to 28 U.S.C. § 2254. The matter was referred for preparation of a Report and Recommendation, and it is now ready for the Court's review.
I. Background
A grand jury indictment returned December 3, 2019, in CR2019-06683, charged Davis with nine counts of theft and one count of theft of a means of transportation. (ECF No. 8-1 at 4-8). On October 12, 2020, Davis pleaded guilty to one count of theft of means of transportation, with one prior felony conviction. (“the 2019 offense”). (ECF No. 8-1 at 18-27). On November 19, 2020, Davis was sentenced to a less than presumptive term of imprisonment to begin that day, with credit for 599 days of presentence incarceration. (ECF No. 8-1 at 30).
Also on November 19, 2020, the state court revoked Davis's probation for a September 2016 conviction on attempt to commit unlawful means of transportation in CR2016-005537, (ECF No. 8-1 at 34), and sentenced him to a presumptive term of one year of incarceration to begin on November 15, 2020, with credit for 1022 days of presentence incarceration. (Id.). Additionally, that same day the state court revoked Davis's probation in CR2016-145142, wherein he was convicted of burglary and stalking, and sentenced him to 3.5 years in prison pursuant to the violation with regard to his conviction for burglary, and to a term of 1.5 years' imprisonment pursuant to the violation of probation with regard to his conviction for stalking. (ECF No. 8-1 at 40). The court awarded credit for presentence incarceration of 1022 days with regard to the sentences in CR2016-145142. Each of the 2016 offenses carried a consecutive term of community supervision equal to one day for every seven days of the sentence. (ECF No. 8-1 at 34-35; 39-40). Additionally, the court ordered that the sentences for all four offenses (both offenses in CR2016-145142, the offense in CR2016-005537, and the offense in CR2019-06683), be served concurrently. (ECF No. 8-1 at 29-31).
On March 14, 2019, the State sought to revoke Davis's probation in CR2016-05537, involving a 2017 conviction for attempt to commit unlawful means of transportation, a felony committed in September of 2016. (ECF No. 8-1 at 10). The prosecutor cited, inter alia, Davis's arrest in CR2019-006683, for theft of a means of transportation. Also on March 14, 2019, the State sought to revoke probation in CR2016-145142, in which Davis was convicted of burglary in the second degree and stalking (domestic violence), with those crimes occurring in August and September of 2016, respectively. (ECF 8-1 at 14). The prosecutor cited, inter alia, Davis's arrest in CR2019-006683, for theft of a means of transportation.
Davis appeared at the November 19, 2020, sentencing hearing with advisory counsel. (ECF No. 8-1 at 45). The judge advised:
... Mr. Davis, by virtue of your plea of guilt in CR2019-006683, it's the judgment of the Court that you are guilty of Count 1, as amended, theft of means of transportation, a Class 3 non-dangerous but repetitive felony with one prior felony conviction, committed in violation of Arizona Revised Statutes on March 29 of 2019.
Because of your plea of guilt, you've previously found in automatic violation of your terms and conditions of probation in both CR2016-005537 and 2016-145142.(ECF No. 8-1 at 47).
When asked if he wanted to address the court, Davis stated:
... Your Honor, I would just like to address that the probation violations that I'm on and the case that I'm being tried on there wasn't any -there was no violence and one of the victims was a misunderstanding, which was my mother, and she is - has passed away since I've been in here incarcerated, and she had Alzheimer's and didn't even understand the whole situation, but just would like to let the Courts know that I personally do take responsibility for all of my actions and just own up as far as placing myself in bad company, but also owning the fact that I was on probation now and have to just take my life back into consideration and then take it to a plan that I have, which is for me to move forward. With the losses that I've had so far, I had to just take a reality check, Your Honor.
And I am a heavy equipment operator. I have career employment so once I'm released -- the five years I believe is excessive, especially just due to the situation at hand, but, Your Honor, I also would just take into consideration for you to put the -- my case in your hands, Your Honor. I really don't -- I just would like to own up and then move forward with my life, Your Honor.(ECF No. 8-1 at 48-49). The court then advised:
So in CR2019-006683, Count 1 it's ordered that you serve five years in the Department of Corrections. You're given credit for 599 days time served on this case.
It's ordered that you serve a consecutive term of community supervision equal to one-seventh of your prison term and if you violate the terms of community supervision you could be ordered back to the Department of Corrections for the remainder of that term.(ECF No. 8-1 at 50). Davis asked the court “I just wanted to know that it has a credit for 1,022,” and the following colloquy occurred:
THE COURT: That's on your probation case.
MR. DAVIS: Is that -- is that to be applied to the -- to the sentence that you just imposed on it?
THE COURT: No, only on your probation case. A lot of those days are days prior to your date of crime on this offense so you don't get credit for those. You get credit from . March 29th of 2019 from when you were arrested on this offense.
MR. DAVIS: Okay.(ECF No. 8-1 at 51).
With regard to the cases in which Davis's probation was being revoked, the judge stated:
All right. In CR2016-145142, Count 2, burglary in the second degree, is a Class 3 felony. It's ordered sentencing you to the Department of Corrections --revoking your probation, sentencing you to the Department of Corrections for the presumptive term of 3.5 years. You're given credit for 1,022 days time served. It is ordered that you serve a consecutive term of community supervision equal to one-seventh of the prison term. That's Count 2.
On Count 3, stalking charge, it's ordered revoking your probation. It's a Class 5 felony. It's ordered sentencing you to the Department of Corrections for the presumptive term of 1.5 years. You're given credit for 1,022 days time served
***
In 2016-005537, it's ordered revoking your probation, sentencing you to the Department of Corrections on Count 1, which is an unlawful use charge, a Class 6 felony. It's ordered sentencing you to the Department of Corrections for the presumptive term of one year. Given credit for -- doesn't really matter. You're already done on that one. 1,022 days.
***
It's ordered that all three cases and four counts run concurrently with one another so, sir, when you get done with your sentence you're not going to have any probation. You'll have a clean slate, so to speak, except for your community supervision. Again, if you violate the terms of community supervision you could be ordered back to the Department of Corrections for the remainder of that term.(ECF No. 8-1 at 52-53).
Davis was also advised:
... if you think there's been any legal error in these proceedings you can request review, but you have to do so within 90 days of today's date. If you can't afford an attorney for that process, records, transcripts, an attorney would be provided for you at your request, but, again, you have to make that request within 90 days of today's date.(ECF No. 8-1 at 53).
The next day, November 20, 2020, the Arizona Department of Corrections, Rehabilitation, and Reentry (“ADOC”) received sentencing documents on the three sentences for the 2016 offenses, but did not receive the sentencing order for the 2019 offense, which carried the longest sentence. (ECF No. 8-1 at 68). Although the sentencing documents for the 2016 offenses referred to the 2019 case, ADOC did not recognize that it had not received the sentencing order in the 2019 case and did not timely record the 5-year sentence. (Id.). As a result, when calculating Davis's projected release date, ADOC applied only the longest sentence for the 2016 offenses, which was 3.5 years. (Id.). Consistent with the 1,022 days of presentence incarceration credit, ADOC calculated Davis's earliest release date on the 3.5-year sentence as December 20, 2020, and on December 20, 2020, ADOC erroneously released Davis to begin serving the term of community supervision imposed by the sentencing court. (Id.).
Davis remained out of custody until April 13, 2021, when he was arrested for a violation of the terms of community supervision and returned to ADOC custody. (Id.). On May 20, 2021, after a hearing, the Arizona Board of Executive Clemency found Davis had violated the conditions of community supervision and revoked the community supervision. (Id.). Arizona law mandated Davis had to serve the remainder of the supervision period in prison, with a new release date of August 27, 2021 (for the 3.5-year sentence). (ECF No. 81 at 68-69).
On August 27, 2021, Davis was again erroneously released from prison because ADOC had still not realized that Davis had been sentenced to 5 years in the 2019 case. (ECF No. 8-1 at 69).
In January of 2022, ADOC was advised Davis was in the Pinal County Jail. (ECF No. 8-1 at 69). In January of 2022 ADOC also learned of the 5-year sentence for the 2019 case, and on January 24, 2022, ADOC took Davis into custody from the Pinal County Jail to complete his sentence for the 2019 offense. (Id.).
Arizona law requires that when an inmate is erroneously released and then returned to prison, ADOC must credit all the time the inmate was out of custody due to ADOC's error toward his sentence. See Schwichtenberg v. State, 190 Ariz. 574, 578 (1997); McKellar v. Arizona State Dep't of Corr., 115 Ariz. 591, 594 (1977). Accordingly, when calculating Davis's remaining sentence after his return to custody, ADOC gave Davis “credit on the 5 year sentence in the 2019 case for every day he spent in ADOC custody for the three concurrent sentences in the 2016 cases and for every day he was out of custody due to ADOC's mistake.” (ECF No. 8-1 at 71). Pursuant to that calculation, Davis's sentence expiration date is March 27, 2024 (5 years from the date he was arrested for the 2019 offense).
Davis filed an action seeking state post-conviction relief pursuant to Rule 33 of the Arizona Rules of Criminal on May 18, 2022, asserting he was being held in custody after the expiration of his sentence. (ECF No. 8-1 at 57-59). The state habeas trial court dismissed the petition in an order entered July 25, 2022. (ECF No. 8-1 at 63). On August 3, 2022, ADOC filed a notice in the state habeas trial court explaining the reason Davis had been prematurely released, and attached an affidavit from an employee in the Time Computation Unit explaining how it was calculating his release date for the 2019 offense. (ECF No. 8-1 at 66-82).
On August 8, 2022, Davis initiated a second action for state post-conviction relief, alleging the same ground for relief as in his first post-conviction action. (ECF No. 8-1 at 84-92). Davis asserted he was entitled to “1,518 days of back time as applicable to [his] 2019 case,” and that he should have been released no later than September 20, 2021, reasoning that this date was “5 years from the arrest date” for one of his 2016 offenses. (ECF No. 8-1 at 91). Davis was appointed counsel, but Davis later moved to waive his right to counsel. (ECF No. 8-1 at 94-96, 98). The state habeas trial court set a hearing to address Davis's motion to proceed pro per (ECF No. 8-1 at 100), but before the hearing Davis's counsel filed a notice indicating he could find no colorable claims and asked the court to allow Davis to file a pro per petition (ECF No. 8-1 at 102-07). The state habeas trial court vacated the hearing and allowed Davis until March 27, 2023, to file a pro per postconviction petition. (ECF No. 8-1 at 110, 112-13). Davis did not file a pro per petition, and the state habeas trial court court dismissed Davis's post-conviction action on June 20, 2023. (ECF No. 8-1 at 115).
On May 19, 2023, Davis filed his § 2254 petition, alleging he was being held beyond the expiration of his sentence, in violation of “the Fourth and Fourteenth Amendments.” (ECF No. 1). Davis contends he was entitled to 1,726 days of presentence incarceration credit, maintaining he should have been should have been released no later than September 20, 2021, for the 2019 offense. Davis appears to arrive at the 1,726 number by adding the 599 days served for the 2019 offense with the 1,022 days of pre-sentencing credit calculated with regard to the sentences imposed on the 2016 offenses.
On May 22, 2023, Davis was released from ADOC to community supervision. (ECF No. 8-1 at 124). However, on June 27, 2023, he was arrested and in the custody of the Maricopa County Sheriff's Office. (ECF No. 8-1 at 121-22). Respondents were made aware that Maricopa County decided not to pursue charges based on the June arrest, but because Davis had violated the terms of his community supervision he was transported from the jail back to ADOC to serve the remainder of his community supervision term in prison. (ECF No. 8-1 at 127-29). Per the ADOC Inmate Data Search website, Davis's current release date is May 8, 2024.
II. Claim for Relief
In his habeas petition Davis challenges the computation of his sentence with regard to his conviction on theft of a means of transportation, i.e., his 2019 conviction. (ECF No. 1 at 2). He asserts he is being held “in custody past the expiration of his sentence including being placed on community supervision after his sentence has expired in violation of the Fourth and Fourteenth Amendments U.S. Constitution.” (ECF No. 1 at 6). Davis asserts that, with regard to his sentence in the 2019 case, he was “entitled to 599 days, plus 1,022 days, plus the 105 days spent at liberty totaling 1,726 days of pre-sentence credit as applicable to the 2019 case running concurrent to the 2016 case.” (ECF No. 1 at 6). He argues he should have been released in September of 2021. He argues “[t]he sentencing court ordered the sentence in the 2019 case be ran concurrent to the 2016 case, therefore my absolute discharge date should've been 5 years from the arrest date in the 2016 case. (Id.).
Respondents allow the § 2254 petition is timely but assert Davis's claim is procedurally defaulted because failed to present the claim to the Arizona Court of Appeals in a procedurally correct manner. Respondents also maintain the claim is without merit.
Respondents assert:
Davis's argument appears to rest on a flawed interpretation of the word “concurrent.†He appears to believe that because his 5-year sentence for the 2019 offense was to run concurrently with the sentence for his 2016 offense, then his 5-year sentence should have commenced from the day he was arrested for the 2016 offense. . . .
But sentence time cannot start running before a sentence actually commences-i.e., the day a defendant is delivered to the prison after sentencing-let alone from a date before the commission of the offense for which the defendant is being sentenced. See State v. Witt, 508 P.2d 105, 106 (Ariz. App. 1973) (“The sentence time cannot start running before sentence is commenced[.]”). Nor can a defendant receive presentence incarceration credit for time spent incarcerated on another offense before the commission of the current offense. See A.R.S. § 13-712(B) (“All time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment[.]”) (emphasis added); see also State v. Williams, 626 P.2d 145, 146 (Ariz. App. 1981) (a defendant sentenced to concurrent terms for a marijuana charge and an aggravated assault charge was not entitled to the same presentence incarceration credit on each sentence because the aggravated assault occurred later while the defendant was awaiting disposition of the marijuana charge).
Davis also appears to suggest an alternative calculus for obtaining an earlier release by adding the 1,022 days of presentence incarceration credit he received for the 2016 offenses, the 599 days he received for the 2019 offense, and the 105 days he was erroneously out of custody, for a total of 1,726 days (roughly 4.7 years). Doc. 1, at 6. Under this calculation, Davis's last possible date for release from physical custody would have been even earlier than his proposed date-roughly three months after he was sentenced. But Davis's math is off. As explained above, Davis cannot receive credit for time spent incarcerated for the 2016 offenses prior to his commission of the 2019 offenses. See Williams, 626 P.2d at 146. As for the 105 days he spent out of custody (assuming, for the moment, that 105 days is correct), those days were already factored into his release date. See Exh. M, at 5 (ADOC explaining it had counted his time out of custody towards the five-year sentence, pursuant to Arizona case law); see also McKellar, 566 P.2d 1337; Schwichtenberg, 951 P.2d 449.
... as the sentencing judge correctly explained to Davis at sentencing, he was only entitled to 599 days of presentence incarceration credit for the 2019 offense. Exh. I, at 8. Davis received the proper amount of presentence incarceration credit and is therefore not being held past the expiration of his sentence. ...(ECF No. 8 at 10-12).
Davis did not file a reply in support of his federal habeas petition challenging Respondents' arguments regarding the ADOC's calculation of his sentence and the computation of his release date.
III. Analysis
Absent specific circumstances, the Court may only grant federal habeas relief on a claim which has been “properly” exhausted in the state courts. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a “procedurally correct” manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). In noncapital cases arising in Arizona, the “highest court” test is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals in his direct appeal or a properly-filed state action for post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008).
To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the “substantial equivalent” of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to present the substance of his claim to the state courts, including a statement of the facts supporting the claim. See Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007). Full and fair presentation also requires a petitioner to reference, in the state court, the same operative federal constitutional guarantee relied on by the petitioner in his § 2254 petition. See Walden v. Shinn, 990 F.3d 1183, 1195 (9th Cir. 2021); Scott, 567 F.3d at 582.
A federal habeas petitioner has not exhausted a federal habeas claim if he still has the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). Because the exhaustion requirement refers only to remedies still available to the petitioner at the time they file their action for federal habeas relief, it is satisfied if the petitioner is procedurally barred from pursuing their claim in the state courts. See, e.g., Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). If it is clear the habeas petitioner's claim is procedurally barred pursuant to state law, the claim is exhausted by virtue of the petitioner's “procedural default” of the claim. See, e.g., id., 548 U.S. at 92. “An implied procedural bar ... occurs when the petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.” Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An implied procedural bar may be applied to unexhausted claims where, as in this matter, a state's procedural rules regarding waiver and the preclusion of claims make a return to state court futile. Coleman, 501 U.S. at 735 n.1; Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002).
If a prisoner has procedurally defaulted a claim in the state courts, review of the merits of the claim is barred absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). Under the “cause” prong of this test, the petitioner bears the burden of establishing that some objective factor external to the defense impeded his compliance with Arizona's procedural rules. See Moorman v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005); Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). Examples of cause sufficient to excuse a procedural default include a showing that the factual or legal basis for a claim was not reasonably available, or that “some interference by officials” made compliance with the state's procedural rules impracticable. Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish prejudice a habeas petitioner must show the alleged error “worked to his actual and substantial disadvantage, infecting his entire [criminal proceedings] with error of constitutional dimensions.” Id. at 494 (internal quotations and emphasis omitted). See also Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. See Djerf v. Ryan, 931 F.3d 870, 880 (9th Cir. 2019).
Petitioners who default federal habeas claims may also obtain review if they show a failure to consider the claims would result in a fundamental miscarriage of justice. See, e.g., Bradford v. Davis, 923 F.3d 599, 610 (9th Cir. 2019). A petitioner meets the “fundamental miscarriage of justice” exception only by establishing that, under the probative evidence, he has a colorable claim of factual, rather than legal, innocence. Bousley v. United States, 523 U.S. 614, 623 (1998) (stating that “actual innocence means factual innocence, not mere legal insufficiency”); Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008). Because the required showing is one of factual innocence, to surmount a procedural default the petitioner must present “‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eye-witness accounts, or critical physical evidence-that was not presented at trial.'” Cook, 538 F.3d at 1028, quoting Schlup v. Delo, 513 U.S. 298, 324 (1995). See also McQuiggin v. Perkins, 569 U.S. 383, 399 (2013); Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011).
Davis did not exhaust his federal habeas claim in the state courts. Davis did not seek review in the Arizona Court of Appeals with regard to the state habeas trial court's denial of post-conviction relief. Davis did not file a reply in support of his § 2254 petition offering any cause for or prejudice arising from his procedural default of his federal habeas claim, or asserting a fundamental miscarriage of justice will occur absent consideration of his claim for relief.
Additionally, Davis fails to state a cognizable claim for relief. The calculation of his release date is a matter of state law, and it is not the province of a federal court to examine issues of state law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Alleged errors in the application of state law are not cognizable in a federal habeas action. See, e.g., Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002). On habeas review, the federal court must accept a state court's interpretation of its own state law, and alleged errors in the application of state law are not cognizable. Langfordv. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
Davis failed to properly exhaust his federal habeas claim in the state courts and fails to establish cause for or prejudice arising from his procedural default of his claim, and fails to establish a fundamental miscarriage of justice will occur absent consideration of the merits of the claim. Additionally, the claim is not cognizable on habeas review.
Accordingly, IT IS RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 1 be DENIED.
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), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the Court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foil. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Davis seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.