Opinion
No. CV 06-1066-PHX-ROS.
March 27, 2007
ORDER
Petitioner, Gary Lane Eisenmann ("Eisenmann"), filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 18, 2006. (Doc. #1). On September 26, 2006, Magistrate Judge Aspey issued a Report and Recommendation (R R) that the Petition be denied and dismissed with prejudice. (Doc. #14). Cordova filed objections to Magistrate Judge Aspey's R R on August 31, 2006. (Doc. #17) For the reasons set forth below, the Court will adopt the R R and deny Eisenmann's Petition for Writ of Habeas Corpus.
I. Standard of Review of Report and Recommendation
II. Analysis
28 U.S.C. § 636Id. Id. See 28 U.S.C. § 2244See28 U.S.C. § 2244
Eisenmann objects to Magistrate Judge Aspey's R R because he claims he is entitled to post-conviction relief under Ariz. R. Crim. P. 32.1(g). Rule 32.1(g) gives a person convicted of a criminal offense the right to file a post-conviction relief proceeding if "[t]here has been a significant change in the law that if determined to apply to a defendant's case would probably overturn the defendant's conviction or sentence." Ariz. R. Crim. P. 32.1(g) (emphasis added).
Eisenmann argues that the holding of United States v. Booker, 534 U.S. 220 (2005) is a significant change in law that retroactively applies to his conviction. However, the Ninth Circuit has held that Booker does not retroactively apply to convictions that were final on direct review before Booker was announced. United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir. 2005). Booker was announced on January 12, 2005. Eisenmann's state conviction became final on direct review on January 24, 2003. Consequently, Booker does not retroactively apply to Eisenmann's conviction nor does it allow him the right to a post-conviction relief proceeding under Rule 32.1(g).
Moreover, Booker addresses sentencing procedures in federal courts. Eisenmann's sentencing procedure was imposed in a state court. In Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court announced a new Constitutional rule addressing how state courts may conduct sentencing procedures. The Ninth Circuit has held that the holding in Blakely, like Booker, does not retroactively apply to convictions that were final on direct review before the Blakely decision was announced. Schardt v. Payne, 414 F.3d 1025, 1036-38 (9th Cir. 2005). Thus, the Blakely decision does not apply to Eisenmann's case because his conviction was final on direct review before the Blakely decision was announced on August 23, 2004.
Eisenmann also objects to Magistrate Judge Aspey's finding that a 8.75 year enhanced sentence was proper because it was based solely on the facts Eisenmann admitted to the sentencing court. Magistrate Judge Aspey's R R found that Eisenmann could properly receive a sentence of 8.75 years because he admitted, in a plea agreement and in open court at the time of sentencing, that he had been previously convicted of two felonies and was on parole at the time of his conviction. Eisenmann argues that the sentencing judge did not enhance his sentence based on his prior convictions or parole status, but because of material contained in a police report submitted to the sentencing court. Eisenmann claims that the procedures used to enhance his sentence were a violation of Booker.
As discussed above, the holdings in Booker and Blakely do not apply to the procedures that affected Eisenmann's sentence. Moreover, "[t]he Constitution permits prior convictions to be used to enhance a [criminal defendant's] sentence, without being submitted to a jury, so long as the convictions were themselves obtained in proceedings that required the right to a jury trial and proof beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 488 (2000); Davis v. Woodford, 446 F.3d 957, 963 (9th Cir. 2006). The record reflects that the sentencing court considered Eisenmann's prior convictions when it imposed an enhanced sentence.
The Supreme Court's holding in Apprendi requires that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond prescribed statutory maximum must be submitted to jury and proved beyond reasonable doubt." Apprendi, 530 U.S. at 488 (emphasis added). At the time of his conviction, Eisenmann faced a statutory maximum sentence of 13 years for the crime he committed and his previous felony convictions. Even if the sentencing court considered and was influenced by facts contained within police reports, it did not impose a sentence above the statutory maximum of 13 years. The imposed sentence was 8.75 years and did not violate the principles of the Apprendi holding. The Court agrees with Magistrate Judge Aspey's finding that the sentencing court could properly impose a sentence of 8.75 years upon Eisenmann.
For the foregoing reasons the Court finds that Eisenmann's habeas petition is barred by the limitation period under 28 U.S.C. § 2244 and in all other respects in agreement with Magistrate Judge Aspey's R R.
Accordingly,
IT IS ORDERED that Magistrate Judge Aspey's Report Recommendation (Doc. # 14) is ADOPTED. Eisenmann's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is DENIED. The Clerk of Court shall dismiss case number CV 06-1066-PHX-ROS.