Opinion
CV-23-00126-PHX-MTL (ASB)
12-08-2023
Christopher Lee Smith, Petitioner, v. Lance Hetmer, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Alison S. Bachus United States Magistrate Judge
TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE:
Petitioner Christopher Lee Smith (“Petitioner”), who is confined in the Arizona State Prison Complex - Tucson, has filed a pro se Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (Doc. 1.) Respondents filed a Motion to Dismiss for lack of jurisdiction on July 7, 2023. (Doc. 15.) For the reasons that follow, the Court recommends that Respondents' Motion to Dismiss be denied.
Citation to the record indicates documents as they are displayed in the District of Arizona's official Court electronic document filing system under Case No. CV-23-00126-PHX-MTL (ASB).
PROCEDURAL HISTORY
I. State Proceedings
Petitioner was involved in a motor vehicle collision after consuming alcohol at a Christmas party in 2007. (Doc. 1 at 28.) A jury found Petitioner guilty of one count of second-degree murder, a class 1 dangerous felony, and three counts of aggravated assault, all class 3 dangerous felonies. (Id.) On April 16, 2010, the superior court entered judgment and sentenced Petitioner to a 16-year term of imprisonment with 462 days of presentence incarceration credit for murder, to be followed by three concurrent 7.5-year terms for the aggravated assaults. (Id.) The Arizona Court of Appeals affirmed the convictions and sentences on direct appeal and the Mandate issued on October 25, 2012. State v. Smith, No. 1 CA-CR 10-0358, 2012 WL 301047 (Ariz.Ct.App. Jan. 31, 2012).
Petitioner filed three unsuccessful post-conviction relief (“PCR”) petitions in the state courts. (Doc. 15-1 at 68.) On October 14, 2021, Petitioner filed a fourth PCR petition in state court, arguing in part that he received insufficient presentence incarceration credit. (Doc. 15-1, Exh. C.) The State conceded that Petitioner was entitled to thirty-two days' additional presentence incarceration credit (Doc. 15-1 at 73) and the superior court agreed (id. at 83). That court awarded Petitioner the additional days of presentence incarceration credit, denied relief on all other claims raised in the PCR petition, and denied Petitioner's motion for reconsideration. (Id.) The Arizona Court of Appeals denied Petitioner's petition for review after finding Petitioner failed to show that the trial court had erred. (Id. at 87.) Petitioner's motion for reconsideration was denied on November 17, 2022, and the Mandate issued on December 9, 2022. (Id. at 85.)
II. Federal Proceedings
A. Notice of Habeas Petition
On December 12, 2014, Petitioner filed a document captioned “Notice for Petition Under 28 U.S.C. § 2254 For a Writ of Habeas Corpus by a Person In State Custody (Non Death Penalty).” (Doc. 1 in 14-CV-02678-PHX-JAT.) Petitioner appeared to seek an extension of the statute of limitation for filing a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Id.) The Court denied the motion and dismissed the case without prejudice. (Doc. 5 in 14-CV-02678-PHX-JAT.)
B. First Federal Habeas Petition
On July 30, 2015, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and a Motion to Appoint Counsel. (Doc. 1 in 15-CV-01465-PHX-JAT.) The Court found that Petitioner's conviction in Maricopa County Superior Court case #CR 2008-102616 became final on October 21, 2013, thus, his habeas petition was untimely. (Doc. 20 in 15-CV-01465-PHX-JAT.) The petition was denied and dismissed with prejudice. (Id.)
C. The Present Habeas Petition
On January 20, 2023, Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) The Court summarized the claims for relief as follows:
Petitioner raises eight grounds for relief, claiming: that his Fifth, Sixth, and Fourteenth Amendment rights were violated when his sentence was amended “through the minute entry instead of in open court with him present” (Ground One); that his due process rights were violated when the trial court failed to give the jury an “intervening cause” instruction (Ground Two); erroneously instructed the jury on second degree murder (Ground Four), and admitted evidence of a prior conviction for driving under the influence (DUI) (Ground Seven); that his constitutional rights were violated when the jury was given an “effect of alcohol use” instruction (Ground Three); that he received ineffective assistance of trial counsel because his attorney failed to properly interview witnesses (Ground Five), failed to have a defense expert interview Petitioner (Ground Six), and stipulated to the admission of evidence of a prior DUI conviction (Ground Seven); that he received ineffective assistance of appellate counsel when his appellate attorney failed to challenge the admission of evidence regarding Petitioner's prior DUI conviction (Ground Seven); and that his sentence violates the Fifth[,] Sixth, and Fourteenth Amendments because it does not comport with Arizona Revised Statutes section 13-711 (Ground Eight).(Doc. 7 at 2-3.) On July 20, 2023, Respondents filed a Motion to Dismiss for lack of jurisdiction. (Doc. 15.) On August 9, 2023, Petitioner filed a Response (Doc. 16), and Respondents did not file a Reply.
D. Motion to Dismiss
In their instant Motion, Respondents argue the Petition should be dismissed for lack of jurisdiction. (Doc. 15 at 2.) Specifically, Respondents contend Petitioner previously filed a habeas petition in this Court that challenged his convictions and sentences, thus, the instant Petition is a second or successive petition. (Id. at 6.) Respondents argue Petitioner has not properly obtained authorization from the Ninth Circuit to file this Petition. (Id. at 7.)
DISCUSSION
I. The Court's Jurisdiction
This Court has jurisdiction to consider the merits of the Petition. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a second or successive petition may only be considered by this Court if the petitioner first obtains permission from the Ninth Circuit prior to filing. See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.”). Unless the Court of Appeals has granted leave to file the petition, the district court lacks subject matter jurisdiction. Burton v. Stewart, 549 U.S. 147, 152 (2007). The Court will review the Petition only to determine if it is a second or successive habeas petition outside the jurisdiction of this Court.
A “second or successive” petition is not defined by the AEDPA, but rather is a “term of art given substance” by the case law. Slack v. McDaniel, 529 U.S. 473, 486 (2000). A petition is generally considered “second or successive” where it raises claims related to the judgment challenged that were or could have been adjudicated on their merits in an earlier petition. Magwood v. Patterson, 561 U.S. 320, 332-33 (2010); Gonzalez v. Crosby, 545 U.S. 524, 529-30 (2005) (“The relevant provisions of the AEDPA-amended habeas statutes, 28 U.S.C. § 2244(b)(1)-(3), impose three requirements on second or successive habeas petitions: First, any claim that has already been adjudicated in a previous petition must be dismissed. § 2244(b)(1). Second, any claim that has not already been adjudicated must be dismissed unless it relies on either a new and retroactive rule of constitutional law or new facts showing a high probability of actual innocence. § 2244(b)(2). Third, before the district court may accept a successive petition for filing, the court of appeals must determine that it presents a claim not previously raised that is sufficient to meet § 2244(b)(2)'s new-rule or actual-innocence provisions. § 2244(b)(3).”) (Emphasis in original).
Petitioner argues his habeas petition is not successive because (1) his first habeas petition was denied as untimely and dismissed without prejudice, and (2) it challenges an amended sentence. (Doc. 16 at 4-6.) Where “there is a new judgment intervening between the two habeas petitions, an application challenging the resulting new judgment is not ‘second or successive' at all.” Magwood, 561 U.S. at 341-42 (internal citation omitted). A petition filed after an amended judgment will not be considered second or successive under § 2244, even if it challenges undisturbed portions of the judgment or sentence. Wentzell v. Neven, 674 F.3d 1124, 1127-28 (9th Cir. 2012). Thus, the question before the Court is whether the superior court's nunc pro tunc order correcting the amount of presentence incarceration credit resulted in a “new judgment” under Magwood.
This Court looks “to state law to determine whether a state court action constitutes a new, intervening judgment.” Turner v. Baker, 912 F.3d 1236, 1239 (9th Cir. 2019). Under Arizona law, a trial court may issue nunc pro tunc orders to “correct clerical errors, omissions, and oversights in the record.” Ariz. R. Crim. P. 24.4; State v. Pyeatt, 135 Ariz. 141, 143 (App. 1982) (“The purpose of a nunc pro tunc order is to make the record reflect the intention of the parties or the court at the time the record was made, not to cause an order or judgment that was never previously made or rendered to be placed upon the record of the court. The object of such an entry is to correct the record to make it speak the truth and not to supply judicial action.”) (Internal citations omitted).
The issue before the Court is similar to the one in Gonzalez v. Sherman, 873 F.3d 763 (9th Cir. 2017). However, that case applied California law to determine that a court's recalculation and alteration of the number of time-served credits awarded to a petitioner constituted a new judgment. Id. at 769. The Ninth Circuit found, under California law, “only a sentence that awards a prisoner all credits to which he is entitled is a legally valid one.” Id. Thus, a trial court's “alteration of the number of presentence credits to which a prisoner is entitled is a legally significant act: it replaces an invalid sentence with a valid one.” Id. The court concluded, under California law, there had been a “new and valid intervening judgment” pursuant to which the prisoner was in custody under Magwood. Id. (internal quotations and citations omitted). Turning to the instant case and applying Arizona law, the outcome is similar.
Under Arizona law, a sentence is illegal if it fails to award the defendant presentence incarceration credits in accordance with A.R.S. § 13-721(B). See State v. Cofield, 210 Ariz. 84, 86 (App. 2005). Section 13-712(B) provides that defendants are statutorily entitled to credit for “[a]ll time actually spent in custody pursuant to an offense” and that time “shall be credited against the term of imprisonment[.]” In Arizona, the court's oral pronouncement of a sentence controls. State v. Whitney, 159 Ariz. 476, 487 (Ariz. 1989) (en banc); Ariz. R. Crim. P. 26.16 (“The judgment of conviction and sentencing on the judgment are complete and valid at the time the court orally pronounces them in open court.”).
Here, the oral pronouncement of Petitioner's sentence was incorrect. (Compare Doc. 15-1 at 42-43 (“In CR 2008-102616-001, for Count 1, second degree murder, a class 1 felony, it is ordered imposing the presumptive sentence of 16 years. I'm going to order that the sentence run consecutively to your probation violation. That means that I'm going to subtract 365 days credit from the 827 that you have done. I'm going to date that sentence from today and give you credit for 462 days.”) with Doc. 15-1 at 82-83 (“IT IS ORDERED nunc pro tunc amending the Sentencing Order and Order of Confinement dated April 16, 2010, awarding Defendant 494 days of presentence incarceration credit on Count 1 in [the] matter (and not 462 days).”).) The Sentence of Imprisonment Minute Entry reflected the terms of the oral pronouncement, maintaining that Petitioner was sentenced to 16 years for Count 1 to start on April 16, 2010, and was awarded 462 days of presentence incarceration credit. (See Id. at 49.)
In Petitioner's fourth PCR petition, he raised the sentencing issue and argued the trial court agreed to award him 859 days of presentence incarceration credit, but that the oral pronouncement of his sentence only awarded him 827 days of credit. (See Doc. 15-1 at 57-58.) In response, the State conceded error and requested the court enter a nunc pro tunc order crediting Petitioner the additional days. (Id. at 80.) Thereafter, the superior court entered an order entitled “RULING / NUNC PRO TUNC AMENDED AND CORRECTED SENTENCING ORDER.” (Id. at 82.) In that order, the court amended “the Sentencing order and Order of Confinement dated April 16, 2010, awarding [Petitioner] 494 days of presentence incarceration credit on Count 1 in [the] matter (and not 462 days).” (Id. at 83.) Next, the court ordered “nunc pro tunc correcting the Minute Entry ‘Sentence of Imprisonment' (4/16/2010) at page 2, regarding the begin date for Sentence for Count 1 as ‘to begin consecutively, or after CR2006-157679-001' (and not to begin 4/16/2010).” (Id.) Finally, the court corrected the Minute Entry “to reflect a sentence begin date for Count 2, Count 3 and Count 4 as ‘consecutively to or after Count 1' (and not 4/16/2010).” (Id.) An Amended Order of Confinement was then signed by the court and provided to Arizona Department of Corrections. (Id.)
Applying Arizona law, the court's January 18, 2022 nunc pro tunc order did not correct a clerical error or omission. Rather, it resentenced Petitioner to impose a sentence in conformity with the presentence incarceration credits to which he was entitled. See A.R.S. § 13-721(B) (presentence incarceration credit); Ariz. R. Crim. P. 24.4 (correcting clerical error); Shinn v. Arizona Bd. of Exec. Clemency, 521 P.3d 997, 1003 (Ariz. 2022) (clarifying that a clerical error is an error that appears in the recording, rather than the rendering, of a judgment). Further, “[t]he object of an order nunc pro tunc is not the rendering of a new judgment and the ascertainment and determination of new rights, but is only the placing in proper form on the record the judgment that had been previously actually rendered[.]” American Sur. Co. of N.Y. v. Mosher, 48 Ariz. 552, 563 (Ariz. 1936). Because Petitioner's sentencing order mirrored the court's oral pronouncement at sentencing, there was no clerical error to be remedied. See State v. Johnson, 113 Ariz. 506, 509 (Ariz. 1976) (holding a court “cannot cause an order or judgment that was never previously made or rendered to be placed upon the record of the court. [A nunc pro tunc order] is to record now for then an order actually made or a judgment actually rendered which through some oversight or inadvertence was never entered upon the records of the court by the clerk or which was incorrectly entered.”). Accordingly, the court's nunc pro tunc order and Amended Order of Confinement resulted in the rendering of a new judgment.
In an unpublished Arizona Court of Appeals opinion, the court held, “where the superior court explained its rationale for entering the nunc pro tunc order and did so to reflect the intent of the original sentencing rulings,” the order was proper. State v. Holguin, No. 1 CA-CR 15-0838, 2016 WL 7368617, ¶ 15 (Ariz.Ct.App. Dec. 20, 2016). It further stated, “when a court makes a favorable adjustment to presentence incarceration credit, it is not considered a resentencing,” and cited State v. Cruz-Mata, 138 Ariz. 370, 376 (Ariz. 1983), State v. Carnegie, 174 Ariz. 452, 455 (App. 1993), and State v. Brooks, 161 Ariz. 177, 181 (App. 1989). Id. However, the facts of those cases are dissimilar to Petitioner's. First, in Petitioner's case, the superior court did not explain its rationale for entering the nunc pro tunc order. Before entering its order, the court stated:
The transcript of the original sentencing hearing similarly lacks a clear statement of intent. The transcript indicates that during the sentencing hearing, the court indicated 827 days and defense counsel then stated it was 859 days. (Doc. 15-1 at 39.) The court responded, “All right. Thank you[.]” (Id. at 40.) The court did not indicate that it adopted that revised number. (Id.) Instead, the next statement by the court on the subject was at oral pronouncement when the court ordered 827 days. (Id. at 43.) The judgment of the court was complete and valid only upon oral pronouncement. Ariz. R. Crim. P. 26.6. Thus, if the intent of the trial court was to order 859 days, the intent of the trial court was not expressed at sentencing. While this is not dispositive, it is important to note the exact language used at sentencing because it was revisited by the trial court in its nunc pro tunc order.
According to the [] transcript from Defendant's sentencing, the [c]ourt agreed he was entitled to 859 days of pre-sentence
incarceration credit. Thereafter, the [c]ourt allotted presentence incarceration credits for this case (462 days) and the probation case in CR2006-157679-001 (365 days), but those amounts total 827 days, not 859 days. The State has conceded error on this issue.(Doc. 15-1 at 82.) At most, the trial court's use of the word “agreed” could be interpreted to indicate that the trial court recognized it had misspoken during the oral pronouncement. That is, perhaps in using the word “agreed,” the trial court was clarifying that its statement of “All right” at sentencing after the correct number was stated by defense counsel meant the court agreed with the number. But the record is sparse. Unlike other cases identified above, see, e.g., Holguin, No. 1 CA-CR 15-0838, 2016 WL 7368617, the “rationale” of the trial court was not clearly explained in its nunc pro tunc order.
In addition to the intent issue, the cases relied upon by the appeals court in Holguin applied a different statutory scheme when they properly modified a sentence without conducting a resentencing hearing. Those cases apply A.R.S. § 13-4037, which states in part, “[u]pon an appeal by the defendant either from a judgment of conviction or from sentence, if an illegal sentence has been imposed upon a lawful verdict or finding of guilty by the trial court, the supreme court shall correct the sentence to correspond to the verdict or finding.” In Petitioner's case, the superior court entered the order correcting Petitioner's sentence, not an appellate court. (See Doc. 15-1 at 82-83.) Thus, the basis for the Holguin court's conclusion that no resentencing occurs when the adjustment of presentence credit is favorable to a defendant, is inapplicable here.
As in the Gonzalez case, the trial court in this matter altered the number of presentence incarceration credits. Just as a sentence is invalid in California if it awards an incorrect number of presentence incarceration credits, Gonzalez, 873 F.3d at 769, so too is a sentence in Arizona that does the same thing. See Cofield, 210 Ariz. at 86. Therefore, the trial court in this case replaced an invalid sentence with a new one in its January 2022 order. The Ninth Circuit held in Gonzalez that when an invalid sentence is replaced, the replacement order constitutes a new and intervening judgment. Gonzalez, 873 F.3d at 769, 772-73. Applying Ninth Circuit precedent, the Court reaches the same conclusion in this case.
For the foregoing reasons, the instant habeas Petition is considered a “first” petition following Petitioner's amended sentence and is not a second or successive petition. See Gonzalez, 873 F.3d at 768-69 (“[U]nder the law of this circuit and the Supreme Court, a petition is not second or successive when there is an amended judgment and the petition is the first one following that amended judgment.”); see also Magwood, 561 U.S. at 341-42; Wentzell, 674 F.3d at 1127-28. The Court notes that it does not take this action lightly, but it is bound to apply precedent.
CONCLUSION
The Court concludes that the superior court's January 18, 2022 order constitutes a “new judgment” under Magwood and the instant Petition is not a second or successive petition for which prior authorization from the Ninth Circuit is necessary. This Court has jurisdiction to consider the merits of the Petition.
Accordingly, IT IS THEREFORE RECOMMENDED that Respondents' Motion to Dismiss (Doc. 15) should be DENIED.
IT IS FURTHER RECOMMENDED that Respondents be required to file an Answer that (1) is limited to relevant affirmative defenses, including, but not limited to, statute of limitations, procedural bar, or non-retroactivity; (2) raises affirmative defenses as to some claims and discusses the merits of others; or (3) discusses the merits of all claims.
This Report and 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 fourteen 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 fourteen 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.