Opinion
CV-24-00306-PHX-ROS (JZB)
07-26-2024
Kevin A. Osborn, Petitioner, v. Ryan Thornell, et al., Respondents.
TO THE HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
HONORABLE JOHN Z. BOYLE UNITED STATES MAGISTRATE JUDGE
Petitioner Kevin A. Osborn (“Petitioner”), presently incarcerated in the Arizona State Prison Complex in Buckeye, Arizona, has filed an amended pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 4.)
I. Summary of Conclusion.
Petitioner's motion is his second petition for a writ of habeas corpus. It is timely, and the Court recommends it be found not second or successive within the meaning of 28 U.S.C. § 2244(b)(1). Petitioner presents six claims arguing that imprisonment past his Earned Release Credit (“ERC”) date is unlawful. But Petitioner committed his crimes in 1991, and the statute in effect at that time allowed the Director of the Department of Corrections discretion to deny Petitioner release on his ERC date. Because the Ninth Circuit has found that discretion does not violate due process, Petitioner is not entitled to relief on his claims. Petitioner has not reached his sentence end date of May 3, 2026, so the Court recommends the petition be denied and dismissed with prejudice.
II. Factual and Procedural Background.
A. Facts.
Petitioner was convicted at a jury trial of two counts of manslaughter on June 12, 1997, in the Maricopa County Superior Court, and sentenced to two consecutive 15-year terms of imprisonment (“Count 1” and “Count 2”) in the Arizona Department of Corrections, Rehabilitation, and Reentry (“ADCRR”) on August 22, 1997. (Doc. 4: 1-2; Doc. 22: Ex. A at 5-6.) The commission date of each offense is December 7, 1991. (Doc. 20-1 at 6.)
B. Procedural Background.
1. Petitioner's third motion for Post-Conviction Relief.
After filing a direct appeal of his conviction on the merits that was denied (doc. 4 at 2-3) and two motions for Post-Conviction Relief (“PCR”) not relevant here (id. at 4), Petitioner filed a petition for PCR in the Maricopa County Superior Court on March 10, 2010, which was denied (id. at 5; Doc. 22 at 4, Ex. B. at 14). That motion alleged, inter alia, that ADCRR was denying him ERCs on his sentence for Count 1. (Id.) Petitioner appealed that denial to the Arizona Court of Appeals, which affirmed the Superior Court's decision on December 20, 2011. (Doc. 22, Ex. B: 100-05.)
ERCs are earned by prisoners pursuant to A.R.S. § 41-1604.07 and may reduce the time prisoners spend in prison, but not the legal duration of the sentence. A prisoner who has accrued ERCs may be released prior to the expiration date of a sentence. ERCs may be revoked at the discretion of the ADCRR. See generally Ariz. Rev. Stat. § 411604.07.
2. Petitioner's first petition for a writ of Habeas Corpus.
Petitioner then filed his first petition for a writ of habeas corpus with this Court almost nine years later, on December 17, 2020. In that petition - Osborn v. Shinn, CV-20-02344 - Petitioner alleged four grounds: (1) unconstitutional detention as violations of procedural due process under the 5th and 14th amendments; (2) unconstitutional detention as violations of substantive due process under the 5th and 14th amendments; (3) unconstitutional detention as violation of equal protection under the 14th amendment; and (4) challenging the Arizona ERC statute - A.R.S. § 41-1604.07 - as unconstitutionally vague under the 5th and 14th Amendments. (Doc. 22, Ex. B: 15-17.) The basis for these grounds alleged by Petitioner was the same as his third motion for PCR: that ADCRR was unconstitutionally denying him ERCs on his sentence for Count 1. This Court denied the petition with prejudice on August 19, 2021, as untimely. (Doc. 22, Ex. E: 144-49; CV-20-02344 Doc. 16.) See also Osborn v. Shinn, 2021 WL 2939822 (D. Ariz. 2021), report and recommendation adopted, 2021 WL 3709852 (D. Ariz. Aug. 20, 2021).
3. Petitioner's fourth motion for Post-Conviction Relief.
As noted by Respondents, Petitioner's earliest possible ERC date on Count 2 was August 3, 2022. (Doc. 22, Ex. I at 4, ¶ 25.) The ADCRR revoked some ERCs due to Petitioner's disciplinary infractions, pushing the ERC date back to May 4, 2023. (Id. at ¶ 27.) After reviewing Petitioner's file in preparation for his ERC date, the Director of the ADCRR refused to apply ERCs to Petitioner's sentence and denied the ERC date on July 15, 2022. (Id. at ¶ 38; Doc. 4, Ex. 5 at 39.) Petitioner then filed a Notice for PCR (“NPCR”) with the Maricopa County Superior Court on June 1, 2023. (Doc. 22, Ex. F.) The NPCR was dismissed by the Superior Court “[w]ithout requiring a response from the State or any further briefing” on June 22, 2023. (Doc. 22 at 5; Doc. 22, Ex. G.) Petitioner then filed for review with the Arizona Court of Appeals, which was denied on February 6, 2024. See State v. Osborn, 2024 WL 455272 (Ariz.Ct.App. 2024); (Doc. 22, Ex. H.).
An “ERC date” is the date a prisoner would be released from custody if any accrued ERCs are applied to the sentence.
In Arizona, a Notice for PCR is distinct from a formal Petition for PCR. The Notice is a preliminary matter, filed before any Petition for PCR. “A Notice Requesting PostConviction Relief informs the trial court of a possible need to appoint an attorney for the defendant as provided in Rule 32.5. The Notice Requesting Post-Conviction Relief also assists the court in deciding whether to summarily dismiss the proceeding as untimely or precluded.” Ariz. R. Crim. P. 32.4, Comment to Rule 32.4(A).
4. Petitioner's second petition for a writ of Habeas Corpus.
The instant motion is Petitioner's second habeas petition, filed with this Court on February 14, 2024 (doc. 1) and amended on February 22, 2024. (Doc. 4.) It raises six grounds, all alleging that because ADCRR denied ERCs on Count 2, Petitioner is suffering unconstitutional detention (1) as a violation of substantive due process under the 14th Amendment; (2) as a violation of procedural due process under the 14th Amendment; (3) as violation of equal protection under the 14th Amendment; and (4) cruel and unusual punishment in violation of the 8th Amendment. Petitioner also alleges that (5) the State of Arizona and ADCRR are violating the 5 th and 14th Amendment prohibitions against double jeopardy; and (6) challenges the Arizona ERC statute as unconstitutionally vague under the 5th and 14th Amendments. (Doc. 4 at 6-11.)
III. Issues
A. Timeliness.
1. Issue and Legal Standard.
Federal law establishes a one-year period of limitation that “shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1) (“[t]he limitation period shall run from the latest of- (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. . . .”).
2. Analysis.
Here, Petitioner filed the instant petition for habeas relief eight days after his petition for review was denied by the Arizona Court of Appeals. It does not appear that Petitioner appealed that denial to the Arizona Supreme Court. Thus, Petitioner's one-year limitation to file a timely petition ends on February 5, 2025. Respondents agree the petition is timely. (Doc. 22 at 12.) Accordingly, this Court recommends that the petition be found timely.
B. Successiveness
Petitioner's first habeas petition raised four grounds, all relating to the denial of ERCs on Count 1. Here, Petitioner raises six grounds, all relating to the denial of ERCs on Count 2. Grounds (1), (2), (3), and (6) of Petitioner's second petition are identical to the four from his first petition, and Grounds (4) and (5) are new grounds.
1. Issue and Legal Standard.
“A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). See also Tyler v. Cain, 533 U.S. 656, 661 (2001) (“If the prisoner asserts a claim that he has already presented in a previous federal habeas petition, the claim must be dismissed in all cases.”).
Accordingly, this Court must determine if the claims presented here in Petitioner's second habeas petition were presented in his first habeas petition. If they are, this Court must dismiss them, and Petitioner must file a motion “in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).
“Not every petition filed after an initial petition has been adjudicated is considered second or successive. The Supreme Court has identified two situations where a second-intime petition is not analyzed under the rules governing second or successive petitions.” Brown v. Atchley, 76 F.4th 862, 866 (9th Cir. 2023).
First, the limitations on second or successive petitions imposed by section 2244(b) apply only to petitions relating to specific judgments. “[T]he phrase ‘second or successive' must be interpreted with respect to the judgment challenged.” Magwood v. Patterson, 561 U.S. 320, 333 (2010). Therefore “a habeas petition is second or successive only if it challenges the same judgment as the prior petition.” Brown, 76 F.4th at 866.
Second, a claim can challenge the same judgment as a prior petition but not be second or successive if it raises a claim that was not ripe in the prior petition. See Panetti v. Quarterman, 551 U.S. 930, 947 (2007) (“In the usual case, a petition filed second in time and not otherwise permitted by the terms of § 2244 will not survive AEDPA's ‘second or successive' bar. There are, however, exceptions.”). “[A] petitioner does not run afoul of the abuse of the writ doctrine by raising a new claim in a successive petition that could not have been raised in a prior petition.” Brown, 76 F.4th at 867 (citing Stewart v. Martinez-Villareal, 523 U.S. 637, 645 (1998)).
2. Analysis.
Here, Petitioner's first petition challenged ADCRR's denial of ERCs on Count 1 in 2010. Petitioner's second petition challenges ADCRR's denial of ERCs on Count 2 in 2022. Though these denials dealt with similar issues, they are distinct in that they dealt with distinct criminal counts and prison terms. These are different decisions or judgments, thus rendering them not second or successive.
Additionally, ADCRR's denial of ERCs on Petitioner's Count 2 did not occur until 2022, 12 years after the denial of ERCs on Count 1 in 2010. Petitioner could not have challenged the denial of ERCs on Count 2 in his first petition 12 years earlier. His claim in his second petition was not ripe until those ERCs were officially denied in 2022. “A prisoner whose conviction and sentence were tested long ago may still file petitions relating to denial of parole, revocation of a suspended sentence, and the like because such claims were not ripe for adjudication at the conclusion of the prisoner's first federal habeas proceeding.” U.S. v. Buenrostro, 638 F.3d 720, 725 (9th Cir. 2011). See also Hill v. State of Alaska, 297 F.3d 895, 898 (9th Cir. 2002) (“[A] prisoner's first petition challenging the calculation of release date should not be deemed successive if the prisoner did not have an opportunity to challenge the state's conduct in a prior petition.”) (citing Crouch v. Norris, 251 F.3d 720 (8th Cir. 2001); In re Cain, 137 F.3d 234, 235 (5th Cir.1998) (per curiam)).
Because Petitioner challenges a different ruling in his second petition than in his first, and because the claims presented in his second petition were not ripe at the time of his first, his petition should not be found second or successive.
C. Exhaustion.
Before a federal court may grant a habeas corpus petition, remedies in state courts for all its claims must be exhausted. See 28 U.S.C. § 2254(b)(1). See also Rose v. Lundy, 455 U.S. 509, 522 (1982) (“[W]e hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims.”); Olvera v. Guirbino, 371 F.3d 569, 572 (9th Cir. 2004) (“A district court may not consider a claim in a § 2254 habeas petition until the petitioner has properly exhausted all available remedies that the state provides.”). “The purpose of the exhaustion requirement is to ensure that state courts are the principal forum for asserting constitutional challenges to state convictions.” Bell v. Lewis, 462 Fed.Appx. 692, 693 (9th Cir. 2011). To exhaust a claim, the petitioner must present the claim to the state courts, to give the State the opportunity to correct alleged violations of the petitioner's federal rights. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (“[E]xhaustion of state remedies requires that petitioners ‘fairly presen[t]' federal claims to the state courts in order to give the State the ‘“opportunity to pass upon and correct” alleged violations of its prisoners' federal rights.'”) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)). To be properly exhausted, the claim must be “fairly presented” to the highest court in a state court system, even if that court's review is discretionary. See O'Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999) (“[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.”); James v. Giles, 221 F.3d 1074, 1077, n.3 (9th Cir. 2000). For non-capital cases arising in Arizona, the “highest court” test is satisfied if the petitioner presented their habeas claim to the Arizona Court of Appeals in their direct appeal or a properly filed state action for post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (“[E]xcept in habeas petitions in life-sentence or capital cases, claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”); Date v. Schriro, 619 F.Supp.2d 736, 763 (D. Ariz. 2008) (“[T]he ‘highest court' requirement is satisfied by fair presentation to the Arizona Court of Appeals.”). The burden is on the petitioner to show that he has properly exhausted each claim. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not oe granted unless it appears that-- (A) the applicant has eXhausted the remedies available in the courts of the State. . . .” 28 U.S.C. § 2254(b)(1).
Here, Petitioner filed the NPCR and checked the box that stated: “The Defendant continues to be in custody after the sentence expires.” (Doc. 22-1 at 154.) Petitioner did not discuss ERCs but instead wrote that “I am currently in custody when I should be free due to sentence miscalculation.” (Id.) The Superior Court dismissed the notice without briefing. The court noted that “[t]he record reflects that Defendant was sentenced to an aggregate 30-year term with 475 days of pre-sentence incarceration credit on August 22, 1997. He fails to show that the ADOCRR has held him beyond the expiration of that time or has miscalculated his expiration dates.” (Doc. 22, Ex. G at 157.) The Superior Court's order did not mention ERCs, nor is there any indication that the denial of ERCs was briefed. (Id.) The Arizona Court of Appeals merely noted that “[a]bsent an abuse of discretion or error of law, this court will not disturb a superior court's ruling on a petition for post conviction relief[]” and stated “[w]e find the petitioner has not established an abuse of discretion.” (Doc. 22-1 at 160.) Therefore, it does not appear that Petitioner raised his ERC claim, so he has not exhausted all remedies in state court.
However, a procedural default is not a jurisdictional matter. See Trest v. Cain, 522 U.S. 87, 89 (1997) (“[T]his Court has made clear that in the habeas context, a procedural default, that is, a critical failure to comply with state procedural law, is not a jurisdictional matter.”) Therefore, a federal habeas court may bypass the question of procedural default to deny a claim on the merits. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (“Judicial economy might counsel giving [substantive questions] priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law.”) (internal reference omitted). See also Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“Procedural bar issues are not infrequently more complex than the merits issues presented by the [habeas petition], so it may well make sense in some instances to proceed to the merits if the result will be the same.”); 28 U.S.C. § 2254(b)(2) (“An application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”).
In his Reply, Petitioner asserts it is unfair to dismiss the petition for lack of exhaustion when the NPCR has “no areas for exposition of a claim or instruction for further supplementation.” (Doc. 28 at 4.) Petitioner's point is not without merit. Accordingly, the Court exercises its discretion to review Petitioner's Grounds on the merits.
D. Claims on the Merits.
1. Legal Standards.
This Court can only grant relief if Petitioner demonstrates the adjudication of his claim either “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Regarding ERCs, “the Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison.” Wolff v. McDonnell, 418 U.S. 539, 557 (1974); see also Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (“There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners.”). In regulating prisoner conduct, States may create liberty interests that implicate the Due Process Clause. See Sandin v. Conner, 515 U.S. 472, 483-84 (1995) (“[W]e recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause.”); McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir. 1986) (“[L]iberty interests protected by the Due Process Clause of the Constitution may be created by state law.”). But “[a]s the Arizona Court of Appeals made clear in Crumrine, Arizona's release credit schemeconfers considerable discretion on the Department of Corrections, thus eliminating any state created liberty interest and distinguishing it from Wolff.” White v. Schriro, 2007 WL 2410335, at *7 (D. Ariz. 2007), aff'd, 377 Fed.Appx. 618 (9th Cir. 2010) (referencing Crumrine v. Stewart, 24 P.3d 1281 (2001) and Wolff, 418 U.S. 539).
Petitioner White committed his offenses “between approximately July, 1992 and April, 1993” and was subject to the same ERC statute that is relevant to Petitioner. White, 2007 WL 2410335, at *1.
“When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication-and federal courts will review the application of those constitutionally required procedures.” Swarthout, 562 U.S. at 220 . “[T]he requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits.” Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985). “[T]he relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. We decline to adopt a more stringent evidentiary standard as a constitutional requirement.” Id. at 455-56 (internal citations omitted).
2. Grounds One and Two - Denial of Due Process.
In Grounds One and Two, Petitioner challenges the denial of ERCs on Count 2 of his sentence as a violation of substantive and procedural due process. But Petitioner did not have a liberty interest in ERCs under the applicable state statute in 1991, so he was not denied due process. The 1991 statute granted the Director of the ADCRR the discretionary authority to not release an inmate who acquired ERCs. See Ariz. Rev. Stat. § 41-1604.07(D) (1991) (“The director, according to rules promulgated by the department, may authorize the release of any prisoner who has earned release credits which, when added to the time served by the prisoner, equal the sentence imposed by the court which shall be the prisoner's earned release credit date.”) (emphasis added). The due process guarantees of the Fourteenth Amendment “apply only when a constitutionally protected liberty or property interest is at stake.” Tellis v. Godinez, 5 F.3d 1314, 1316 (9th Cir. 1993). Because state law allowed the Director discretion to not release a prisoner who earned ERCs, Petitioner's claim does not create a federal liberty interest and he is not entitled to relief. See Crumrine, 24 P.3d at 1284 ; White v. Schriro, No. CV-05-3212-PHX-FJM, 2007 WL 2410335 (D. Ariz. Aug. 21, 2007) (denying petitioner's request for application of ERCs under § 41-1604.07 because the “petitioner began serving a ten year sentence for offenses committed between approximately July, 1992, and April, 1993” and “[t]he statutes in effect at the time of his offenses conferred wide discretion upon the director of [ADOC] in determining whether credits should actually be applied”) (citing Ariz. Rev. Stat. § 41-1604.07(D) (1991)). The Ninth Circuit affirmed this ruling and found “the Arizona superior court did not unreasonably apply clearly established federal law as determined by the Supreme Court by concluding that White had failed to demonstrate that he had a liberty interest in the application of these credits.” White v. Schriro, 377 Fed.Appx. 618 (9th Cir. 2010) (unpublished); see also Murray v. Ryan, 2019 WL 9406452, at *3 (D. Ariz. 2019) (denying habeas relief because “when Murray committed his crimes in 1989, Arizona state law did not provide a liberty interest in earned-release credits” under the statute in effect at the time).
The offense date for Petitioner's offenses is December 7, 1991. (Doc. 22-1 at 6.)
“Before 1986, the mandatory language of Arizona's earned release credit statutes gave prisoners a liberty interest in release credits enforceable through the Due Process Clause. McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir.1986). Thereafter, apparently in response to McFarland, the legislature enacted subsection D, making the release discretionary, and added the language in subsection B, stating that the earned release credits do not reduce a sentence. 1986 Ariz. Sess. Laws, ch. 200, § 2. And Division One of this court has determined that, under the 1986 version of the statute, even after a prisoner has reached his earned release credit date and has not forfeited any of his release credits, the Director, in his discretion, may refuse to release him. Sanchez v. Ryan, 178 Ariz. 88, 91, 870 P.2d 1184, 1187 (App.1993). Thus, although [the prisoner] is entitled to accrue earned release credits under subsection A, application of the credits is discretionary under subsection D. Therefore, [the prisoner] did not have an enforceable liberty interest in the application of his earned release credits.”
Even if there was a liberty interest in earning ERCs, the petition would still fail because there is no evidence the ADCRR failed to comply with procedural requirements as laid out in Hill, 472 U.S. at 455. As mentioned earlier, “the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. Here, Petitioner's ERCs were revoked on Count 2 “after a comprehensive review of [his] file” pursuant to ADCRR DO 1002 ¶ 8.12.1.4, encompassing “a variety of factors” such as “the extent and nature of the inmate's disciplinary history; the inmate's custody classification; participation in any rehabilitative programming; input [from] interested parties - including the victim(s) and prosecuting agency; [and] input from any COIII(s), COIV(s), or other ADCRR staff who have had personal contact with the inmate . . . .” (Doc. 22, Ex. I at 5-6.) “As of summer 2022, Osborn had received 20 major disciplinary tickets and 30 minor disciplinary tickets.” (Id.) ADCRR avows that “the reasons for Osborn's denial were consistent” with the factors mentioned. (Id.) As there is evidence in the record that supports the conclusion reached by the ADCRR, Petitioner fails to establish he is entitled to relief on this claim. See Davis v. Shinn, 2021 WL 6503702, at *3 (D. Ariz. 2021), report and recommendation adopted, 2022 WL 159171 (D. Ariz. 2022) (holding petitioner “fails to show a fundamental miscarriage of justice will occur absent consideration of his claims[]” in case alleging unconstitutional denial of ERCs); Green v. Ryan, 2016 WL 7206701, at *4 (D. Ariz. 2016), report and recommendation adopted, 2016 WL 7178707 (D. Ariz. 2016) (finding “Petitioner's due process rights were not abridged as claimed by Petitioner” in a case alleging unconstitutional denial of ERCs).
3. Ground Three - Equal Protection Violation.
In Ground Three, Petitioner argues the decision to deny him ERCs based on his “criminal history” violates his right to equal protection. (Doc. 4 at 8.) He asserts his criminal history “is quite benign compared to those of similarly situated inmates who are continuously released by ADOC and it's officials.” (Id.) The Equal Protection Clause requires that similarly situated persons be treated alike. U.S. Const., amend. XIV. To prove an equal protection violation, Petitioner “must show that the [government] acted with an intent or purpose to discriminate against [him] based upon membership in a protected class.” Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 2005). Although prisoners are “not a suspect class,” Glauner v. Miller, 184 F.3d 1053, 1054 (9th Cir. 1999), Petitioner can assert he has been intentionally singled out. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (“Our cases have recognized successful equal protection claims brought by a ‘class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.”).
Here, Petitioner fails to demonstrate he has been intentionally treated differently from similarly situated inmates. Petitioner asserts that “by contrast, ADOC has constantly released ‘new code' prisoners with ‘rap sheets' and criminal histories magnitudes longer and entirely more severe than” his. (Doc. 4 at 25.) But “new code” prisoners are not similarly situated to Petitioner because the code is different. See 1993 Ariz. Sess. Laws ch. 255, § 87 (effective Jan. 1, 1994) (deleting “[t]he director ... may authorize the release of any prisoner who has [sufficient] earned release credits” and replacing it with “[a] prisoner who has reached his earned release date shall be released”) (emphasis added). Also, other petitioners/defendants who committed offenses under Petitioner's code were not released. See White, Murray, and Sanchez. Petitioner also presents nothing more than a bare allegation of disparate treatment without identifying similarly situated defendants who were released under the code in effect at Petitioner's sentencing. “Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.” James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). Petitioner is not entitled to relief on this claim.
4. Ground Four - Cruel and Unusual Punishment.
In Ground Four, Petitioner argues that “incarceration beyond any legitimate release date is cruel and unusual punishment.” (Doc. 4 at 9.) The Eighth Amendment prohibits “extreme sentences that are grossly disproportionate to the crime.” Ewing v. California, 538 U.S. 11, 23 (2003) (cleaned up). For purposes of federal habeas corpus review, only a grossly disproportionate sentence has been found to be amenable to review under 28 U.S.C. § 2254(d)(1); see Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (reviewing habeas ruling that petitioner's sentence was “contrary to, or involved an unreasonable application of” the “clearly established gross disproportionality principle”).
Here, Petitioner is not contesting the sentences in his case. He has not argued that his sentences were disproportionate to his crimes. Accordingly, Petitioner is not entitled to habeas relief on his Eighth Amendment claim.
Petitioner has not been incarcerated beyond his release date. Petitioner's sentence end date is May 3, 2026 (doc. 22-1 at 164), a calculation Petitioner does not dispute.
5. Grounds Five and Six - Double Jeopardy and Ambiguous Laws.
In Ground Five, Petitioner argues a “violation of the double jeopardy clause” because his “sentence was set by the legislature [and] included the earning of ERC days, and ADOC has now increased Petitioner's sentences by magnitudes.” (Doc. 4 at 10.) The core of Petitioner's argument is that “ADOC has unilaterally created [an] additional punishment” by nullifying “of all his earned time on his second sentence.” (Id.)
As noted above, the Arizona legislature conferred discretion to ADCRR to release inmates who earned ERC credits, and later rescinded the discretion. See 1993 Ariz. Sess. Laws ch. 255, § 87 (effective Jan. 1, 1994) (deleting “[t]he director ... may authorize the release of any prisoner who has [sufficient] earned release credits” and replacing it with “[a] prisoner who has reached his earned release date shall be released”).
The Double Jeopardy Clause “protects against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense.” Monge v. California, 524 U.S. 721, 727-28 (1998). But Petitioner is not arguing he was subject to successive convictions or punishments. Instead, he argues that the denial of his conditional release violates the Double Jeopardy Clause. Petitioner's claim fails. “There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979). Petitioner's citation to Barber v. Thomas, 560 U.S. 474, 476 (2010) is unavailing because the Court in Barber affirmed the bureau of prison's time calculation method and did not address the issue of double jeopardy.
In Ground Six, Petitioner argues that several prison officials “avowed to Petitioner that he would be released on the ‘ERC date' of his second sentence.” (Doc. 4 at 11.) He asserts the ERC statute must be vague and ambiguous if none of those officials knew his proper release date. (Id.) He asserts the “rule of lenity should be applied in his favor.” (Id.) The rule of lenity is a rule of statutory construction that “applies primarily to the interpretation of criminal statutes.” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 16 (2011). It “only applies if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute that the Court must simply guess as to what Congress intended.” Maracich v. Spears, 570 U.S. 48, 76 (2013). Where “the statutory language is unambiguous, the rule of lenity ... is inapplicable.” Beecham v. U.S., 511 U.S. 368, 374 (1994).
Here, the statute in question is not ambiguous. As noted above, the 1991 statute granted the Director of the ADCRR the discretionary authority to not release an inmate who acquired ERCs. See Ariz. Rev. Stat. § 41-1604.07(D) (1991). The court in Crumrine assumed the change was an intentional response to McFarland, 779 F.2d at 1428 (recognizing that a liberty interest is created by good time credit statutes that use mandatory language). Petitioner was one of many defendants sentenced under a statute in effect in 1991 that permitted ADCRR the discretion to refuse release of inmates who accrued ERCs. The result may be unfortunate for Petitioner, but the discretion is not ambiguous.
Petitioner also asserts that officials advised him he “would be released on his ERC release date.” (Doc. 4 at 21.) As noted by Petitioner, many “new code” inmates were released on their ERC release date. (Id. at 25.) Even if numerous officials advised him he would be released on his ERC date, the statutory authority to approve his release unambiguously resided with the Director of the Department of Corrections. Petitioner is not entitled to relief on this claim.
E. Conclusion
Petitioner presents six Grounds in the instant petition for habeas corpus relief, but he fails to demonstrate he is entitled to relief.
IT IS THEREFORE RECOMMENDED that the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 4) be DENIED and DISMISSED with prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
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. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file 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 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.