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finding non-retroactivity principle did not apply when conviction and sentence became final after date Supreme Court decided Apprendi
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Civil No. 01-1025 ADM/JGL
March 7, 2002
Bradford W. Colbert, Esq., Legal Assistance to Minnesota Prisoners, on behalf of Petitioner.
Lawrence F. Clark, Esq., Assistant Dakota County Attorney, on behalf of Respondent.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to Petitioner Nico Salas' Objections [Doc. No. 14] to the January 8, 2002, Report and Recommedation ("RR") of Magistrate Judge Jonathan G. Lebedoff [Doc. No. 13]. In the RR, Judge Lebedoff recommends dismissing the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, Judge Lebedoff's RR is adopted in part and the Petition is dismissed.
II. BACKGROUND
On May 5, 1993, a Minnesota State District Court jury found Petitioner Nico Salas ("Salas") guilty of thirteen counts of criminal sexual conduct involving two juvenile victims. The trial court sentenced Salas to five consecutive sentences of 158 months, totaling 790 months. The Minnesota Court of Appeals reversed the sentence and remanded for re-sentencing. State v. Rozales, No. C8-93-2157, 1994 WL 263346, at *2 (Minn.Ct.App. June 14, 1994) (remanding and recommending application of the patterned sex offender statute, Minn. Stat. § 609.1352 (1990)).
After the re-sentencing, in July 1998, Salas petitioned the state court for post-conviction relief, arguing that because Dr. Peter Marston did not conclude in his June 1993 assessment that Salas was a patterned sex offender, the district court had no basis for concluding that he was a patterned sex offender. The district court granted hearings on the petition. On May 5, 1999, the district court sentenced Salas to a prison term of 600 months under Minnesota's patterned sex offender statute, modified to a term of 480 months, the statutory maximum sentence under Minn. Stat. § 609.15, subd. 2 (1990). The Minnesota Court of Appeals affirmed. See State v. Rozales, No. C2-99-1132, 2000 WL 343186 (Minn.Ct.App. April 4, 2000). The Minnesota Supreme Court denied review on June 13, 2000. Further factual background for this matter is adequately set forth in the RR and is incorporated by reference for the purpose of Salas' present objections.
As a portion of the 1993 pre-sentence investigation, Dr. Peter Marston had conducted a psychosexual evaluation of Salas. Upon the prosecutor's request, Dr. Marston re-evaluated Salas in light of Minnesota's patterned sex offender statute. In a written report of October 16, 1998, and in testimony at a December 7, 1998, hearing, Dr. Marston indicated that Salas met the criteria of the patterned sex offender statute. See State v. Rozales, No. C2-99-1132, 2000 WL 343186, at *2 (Minn.Ct.App. April 4, 2000). Dr. Marston admitted that "although he reviewed several additional documents, not reviewed in 1993, that contained unproved allegations of sexual misconduct by [Salas], the additional documents were not the basis for his conclusion but were merely consistent with [Salas'] known conviction history." Id.
III. DISCUSSION
A district court must make an independent, de novo evaluation of those portions of an RR to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); D. Minn. LR 72.1(c)(2).
In his first objection, Salas contends that his petition was timely filed. The RR adopted Salas' position and dismissed his Petition on other grounds. See RR, at 4, 9-10.
Next, Salas argues that the sentencing court violated his constitutional right to due process, as elucidated by Apprendi v. New Jersey, 530 U.S. 466 (2000). The RR declined to apply the principles of Apprendi, relying on Eighth Circuit authority that Apprendi is not retroactively applicable on collateral review. United States v. Moss, 252 F.3d 993, 998 (8th Cir. 2001); see also Burch v. Corcoran, 273 F.3d 577, 584 (4th Cir. 2001). Salas objects, asserting that his conviction and sentence had not yet become final when Apprendi was decided.
In Apprendi, the U.S. Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt." 530 U.S. at 470.
Under the non-retroactivity principle, a federal court may not grant habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final. Caspari v. Bohlen, 510 U.S. 383, 389 (1994). For purposes of the retroactivity analysis, a state conviction and sentence becomes final "when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied." Id. at 590. The Minnesota Supreme Court denied Salas' petition for review on June 13, 2000. Salas' conviction and sentence became final 90 days thereafter, on September 11, 2000, when his time for filing a writ of certiorari had elapsed. See 28 U.S.C. § 2101(c). On June 26, 2000, the U.S. Supreme Court decided Apprendi. Thus, the new rule of Apprendi was announced before Salas' conviction and sentence became final, rendering the non-retroactivity principle inapplicable. The portion of the RR holding that Apprendi is not applicable in this case due to retroactivity is rejected. However, this rejection does not necessarily lead to the conclusion that Salas is entitled to habeas corpus relief. Salas' Petition fails for other reasons.
In his final objection to the RR, Salas argues that his sentencing process violated due process because, he alleges, the trial court relied on uncharged and unproven accusations of sexual crimes to sentence him. The facts found by the state court do not support Salas' contention. See Purkett v. Elem, 514 U.S. 765, 769 (1995) ("In habeas proceedings in federal courts, the factual findings of state courts are presumed to be correct, and may be set aside, absent procedural error, only if they are not fairly supported by the record.") (internal quotation marks omitted); see also 28 U.S.C. § 2254(d)(2) (e). The state court relied on Dr. Marston's testimony that although unproven allegations of sexual misconduct were consistent with Salas' history, they did not constitute the basis for Dr. Marston's conclusion that Salas is a patterned sex offender. Rozales, 2000 WL 343186, at *4. The record reflects that Dr. Marston found sufficient information, based on Salas' 1983 and 1993 convictions for criminal sexual conduct, and his admission that he impregnated a 14-year old girl, to conclude that Salas met the criteria of the patterned sex offender statute. Id. The state court concluded that Dr. Marston's report and testimony were based on Salas' conviction history. Id. The state court's findings are fairly supported by the record. In addition to his conviction history, Salas was convicted of thirteen counts of criminal sexual conduct in 1993. Taking into account prior convictions for sentencing does not violate due process. See Apprendi, 530 U.S. at 470 (noting that the "fact of a prior conviction" is an exception to its holding); Jones v. United States, 526 U.S. 227, 248 (1999) (stating that prior convictions require no proof to a jury beyond reasonable doubt, because convictions must "have been established through procedures satisfying fair notice, reasonable doubt, and jury trial guarantees").
Dr. Marston testified that at the time of his 1993 evaluation, he was not instructed to evaluate whether Salas met the criteria of the patterned sex offender statute. See Rozales, 2000 WL 343186, at *4.
Moreover, because Salas' sentence does not exceed the statutory range authorized by the jury's verdict, Apprendi does not apply. Apprendi only applies where a non-jury factual determination increases the maximum sentence beyond the statutory range authorized by the jury's verdict. See United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir. 2000); United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir. 2000) (holding Apprendi inapplicable where defendant's sentence did not exceed the statutory maximum without regard to non-jury factual determinations). For the crimes of which he was convicted, the maximum sentence that may be imposed upon Salas is 480 months, the sentence he received. See Rozales, 1994 WL 263346, at *1 (citing Minn. Stat. § 609.15, subd. 2 (1990)). Salas' due process rights were not violated.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED that:
(1) Judge Lebedoff's RR [Doc. No. 13] is ADOPTED in part;
(2) Petitioner's Objections to the RR [Doc. No. 14] are DENIED in part; and
(3) The Petition for Habeas Corpus under 28 U.S.C. § 2254 is DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.