Opinion
No. CV-18-00547-TUC-RCC (DTF)
11-25-2019
Alexander E Smith, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Petitioner Alexander E. Smith (Smith or Petitioner), presently confined in the Arizona State Prison Complex, Huachuca Unit in Kingman, Arizona filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Petition). (Doc. 1.) This matter was referred to Magistrate Judge Ferraro for Report and Recommendation. (Doc. 5.)
Before the Court are the Petition and Respondent's Answer to Petition for Writ of Habeas Corpus (Answer). (Docs. 1, 16.) The Court granted Petitioner's request to have until November 13, 2019 to file a reply. (Docs. 21, 22.) As of the date of this Report and Recommendation, no reply has been filed. See Dkt. As more fully set forth below, the Magistrate Judge recommends that the district court, after its independent review, dismiss the Petition.
BACKGROUND
On August 4, 2016, Petitioner was indicted by a Cochise County grand jury on six counts of sexual conduct with a minor, two counts of molestation of a child and one count of luring a minor for sexual exploitation. (Doc. 17 at 3-6.) On November 16, 2016, Petitioner pleaded guilty in the Arizona Superior Court, Cochise County to two counts of attempted sexual conduct with a minor. Id. at 8-45. On January 18, 2017, the trial court sentenced Petitioner to the minimum term of five (5) years' imprisonment in the Arizona Department of Corrections on the first count of attempted sexual conduct with a minor followed by lifetime probation on the second count of attempted sexual conduct with a minor. (Doc. 17 at 47-99.)
On April 10, 2017, Petitioner filed a notice of post-conviction relief (PCR). Id. at 102-04. On January 10, 2018, Petitioner's PCR counsel filed a notice of finding no colorable claim for PCR relief and a motion to withdraw as counsel, stating that counsel "has completed his reviews of the file, investigation, and research as required, and has found no colorable claims for post-conviction relief which can be raised on [Petitioner's] behalf." Id. at 106-07.
On April 2, 2018, Petitioner filed a pro se petition for PCR relief claiming (1) that the trial court breached the plea agreement and violated his due process rights by imposing a flat term of incarceration; (2) that Arizona's lifetime probation statute was unconstitutionally vague in violation of the due process clause of the United States Constitution; and (3) that counsel was "ineffective for failing to detect that the enhanced sentence violated the Eighth Amendment." Id. at 109-10.
On April 5, 2018, the trial court dismissed Petitioner's PCR petition concluding "there are no colorable issues for relief raised." Id. at 123.
On May 15, 2018, the state filed a response to Petitioner's PCR petition advising that Petitioner was "in fact receiving earned release credits and that he is eligible for release on November 19, 2020, after serving 85.7% of his time." The state also indicated that it would not object "to the Court amending the minute entry or resentencing [Petitioner] to reflect that [Petitioner] is not serving a day for day or 'flat time' sentence." (Doc. 18 at 3.)
On May 29, 2018, the trial court issued an order granting Petitioner's PCR petition to reflect the state's concession to 85.7% time. Id. at 9.
On June 18, 2018, Petitioner filed a petition for review with the Arizona Court of Appeals, arguing that (1) the state court abused its discretion by summarily dismissing his PCR petition; (2) Arizona's lifetime probation provision is unconstitutionally vague in violation of the adequate notice and due process clause of the United States Constitution; and (3) his counsel was ineffective "for failing to detect that the enhanced sentence contained within the plea violated [his] Eighth Amendment rights." Id. at 11-12.
On September 14, 2018, the Arizona Court of Appeals granted review but denied relief holding:
Under § 13-902(E), after a conviction on enumerated offences, and when probation is available, 'probation may continue for a term of no less than the term that is specified in subsection A ... up to and including life and that the court believes is appropriate for the ends of justice.' In [State v.] Schmidt [220 Ariz. 563 (2009)], our supreme court determined that '[u]se of the catch-all [aggravating circumstance] as the sole factor to increase a defendant's statutory maximum sentence violates due process because it gives the sentencing court virtually unlimited post hoc discretion' in characterizing a defendant's past conduct as the 'equivalent of an element of the aggravated offense.' 220 Ariz. 563, ¶ 10. Schmidt then distinguished however, 'between a trial court's using a catch-all aggravator to increase a defendant's maximum potential sentence versus the court's considering factors embraced by a catch-all in imposing a sentence within a properly determined maximum range.' Id. ¶ 11. [...] Thus, the application of § 13-902(E) is equivalent to a court's considering catch-all factors to determine a sentence within the maximum range - the situation we distinguished in Schmidt. 220 531, ¶ 10. We therefore find no error in the court's order of lifetime probation.(Doc. 18 at 29-30.) Petitioner did not seek review in the Arizona Supreme Court. On March 14, 2019, the Arizona Court of Appeals issued its mandate. Id. at 32.
[...]
Smith also argues he received ineffective assistance in that trial counsel failed 'to detect the enhanced sentence violated the Eighth Amendment.' [...] He has provided no evidence and cited no authority to support his argument that counsel's failure to assert a claim of cruel and unusual punishment as to such a sentence fell below prevailing professional norms.
On November 13, 2018, Petitioner filed his Petition alleging two grounds for relief. (Doc. 1.) In Ground One, Petitioner seeks relief on the grounds that the trial court's imposition of a lifetime probation violates his rights under the due process clause of the Fourteenth Amendment because the statute is unconstitutionally vague. Id. at 6. In Ground Two, Petitioner seeks relief claiming that he was denied the right to effective assistance of counsel in violation of his Sixth Amendment rights. Id. at 7.
Respondents filed an Answer arguing that the claim alleged in Ground One is non-cognizable on habeas review and that the claim alleged in Ground Two was waived by Petitioner when he entered the plea agreement. (Doc. 16.) Respondents also argue that both grounds for relief are without merit. Id.
As discussed below, this Court agrees with Respondents.
ANALYSIS
The AEDPA
Because the Petition was filed after April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) governs. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)). The AEDPA's one-year statute of limitations applies. See 28 U.S.C. § 2244(d)(1). See Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). The limitations period begins to run on the date when "the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
Petitioner's convictions became final upon the expiration of the 30-day period in which he could have filed a petition for review in the Arizona Supreme Court. The court of appeals denied Petitioner relief on September 14, 2018. (Doc. 18 at 27.) Accordingly, Petitioner had until October 14, 2018, to file such a petition for review in the Arizona Supreme Court. Because he did not file a petition for review Petitioner's conviction became final on October 14, 2018. The Petition was deposited in the prison mailing system on November 8, 2018 and is timely.
Ground One is Non-Cognizable
In Ground One, Petitioner claims that the trial court's imposition of lifetime probation violates his rights under the due process clause of the Fourteenth Amendment because Ariz. Rev. Stat. § 13-903(E) is unconstitutionally vague. (Doc. 1 at 6.) In support of this claim Petitioner alleges:
The trial court sentenced me to a lifetime probationary period under Arizona's 13-902(E). After hearing argument from both sides[,] the state
recommended 10 years - the trial court deviated from [§] 13-902(A)(2) - autherizing (sic) a maximum probation term of 5 years and imposed a lifetime term. The trial court did not specify or articulate on the record any facts or reasons for the deviation from the statutory five year maximum, to a life sentence.(Doc. 1 at 6.)
The record discloses that the pre-sentence report classified me as a level one offender. Additionally, I am required to register as a sex offender for the remainder of my life. Based on the judge's discussion of his own daughter on the record, I strongly believe due to the status of the law at issue, the trial court was allowed to impose a lifetime sentence based upon personal reasons.
"It is not the province of a federal court to reexamine state-court determination on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68, 71-73 (1991); see also Johnson v. Sublett, 63 F.3d 926, 931 (9th Cir. 1995); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) ("We are not a state supreme court of errors; we do not review questions of state evidence law. On federal habeas we may only consider whether the petitioner's conviction violated constitutional norms."); see generally Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("[F]ederal habeas corpus relief does not lie for errors of state law.").
This Court agrees with Respondents that the claim alleged in Ground One appears at first glance to be a federal constitutional claim because of Petitioner's invocation of the due process clause of the Fourteenth Amendment. However, the factual basis alleged by Petitioner makes clear that he is challenging the trial court's sentence in accordance with state sentencing laws and procedures. See e.g., Doc. 1 at 6 ("the trial court deviated from [A.R.S. § 13-902(A)" and "the trial court did not specify or articulate on the record any facts or reasons for the deviation from the statutory five year maximum to a life sentence").
This Court determines that the claim alleged in Ground One is non-cognizable on habeas review.
Ground Two is Waived
Petitioner claims in Ground Two that he received ineffective assistance of counsel in violation of his Sixth Amendment rights when his trial counsel allegedly failed to recognize that "under the facts of [his] case, the dangerous crimes against children enhancement could not be applied under the federal constitution and prior state supreme court determination of law and fact." (Doc. 1 at 7.) Petitioner explains the factual basis for his claim as follows:
My case involves consensual sexual intercourse with a fourteen year and a[] half year old girl. The state charged me with sexual conduct with a minor a class 6 felony[,] A.R.S. § 13-1405. Under that provision the legislature aggravated the offense from a class 6 felony to a class 2 felony if the victim is under fifteen. The state added to the indictment and plea an additional component substantially modifying the range of sentencing and labeled the crime as dangerous crimes against children. Along with the additional sentencing, the dangerous crimes against children designation and enhancement adds monetary ($1000.00 dcac (sic) assessment) and lifelong stigma.Id.
[...]
Under state law[,] the Arizona Supreme Court stated 'sexual conduct with a minor over 14 ½ years old should be closer to the punishment for sexual conduct with a 15 year old victim. State v. Bartlett, 164 Ariz. 229, 235, 792 P.2d 692, 698 (1990). Both the Bartlett case and my case are factually identical with the exception to Bartlett having two victims. In Bartlett, the state supreme court 'invalidated defendant's sentence on ground (sic) that statutory range of sentencing under dangerous crimes against children act.'
Here, Petitioner pleaded guilty to two counts of attempted sexual conduct with a minor. (Doc. 16 at 11-17.)
[A] guilty plea breaks the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of rights that occurred prior to the entry of the guilty plea.Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also Mabry v. Johnson, 467 U.S. 504, 508 (1984) ("It is well settled that a voluntary and intelligent plea of guilty made by an accused person who has been advised by competent counsel, may not be collaterally attacked.'), disapproved of on other grounds by Puckett v. United States, 56 U.S. 129, 138 n. 1 (2009). Aside from a challenge to the voluntary and intelligent character of the plea itself, a defendant's guilty plea bars federal habeas relief based on pre-plea non- jurisdictional constitutional claims. See Hudson v. Moran, 760 F.2d 1027, 1029-30 (9th Cir. 1985) ("As a general rule, one who voluntarily and intelligently pleads guilty to a criminal charge may not subsequently seek federal habeas corpus relief on the basis of pre-plea constitutional violations."). "[A] defendant who pleads guilty upon advise of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson, 397 U.S. 759 (1970)].'" Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (quoting Tollett, 411 U.S. at 267). "[T]he voluntariness of the plea depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56 (quoting McMann, 397 U.S. at 771); see also Hudson, 760 F.3d at 1030 ("A defendant may only attack the voluntary and intelligent nature of the guilty plea ... by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases.")
The claim alleged in Ground Two does not implicate the voluntariness of Petitioner's plea. This Court agrees with Respondents that Petitioner waived the claim alleged in Ground Two when he entered into the plea agreement.
This Court determines that the claim alleged in Ground Two has been waived.
Both Grounds One and Two Are Exhausted but Without Merit
Non-cognizability and waiver aside, the claims alleged in the Petition are exhausted but without merit.
Exhaustion
A federal court may only consider a petitioner's application for a writ of habeas corpus if "the application has exhausted remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A); see Coleman v. Thompson, 501 U.S. 722, 731 (1991); Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008). To meet the exhaustion requirement, a prisoner "must 'fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004). The Ninth Circuit has held that a prisoner in Arizona does not exhaust a claim for federal review unless he has presented it to the Arizona Court of Appeals. See, e.g., Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2004) ("To exhaust his Arizona remedies, Castillo had to give the Arizona courts a 'fair opportunity' to act on his federal due process claim before presenting it to the federal courts. ... We consider Castillo's briefing to the Arizona Court of Appeals to determine whether he fairly presented his federal due process claim to the Arizona courts.') (citations omitted); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (except in cases in which life sentences or the death penalty has been imposed, Arizona prisoners properly exhaust their claims for the purpose of federal habeas corpus by presenting them to the Arizona Court of Appeals).
Petitioner raised the claims alleged in Grounds One and Two in his petition for PCR relief. (Doc. 17 at 109.) He also raised these claims in his petition for review in the court of appeals. The court of appeals granted review but denied relief on the merits. (Doc. 18 at 11-30.)
Petitioner has exhausted the claims alleged in Grounds One and Two.
Merits
Congress intended the AEDPA to foster federal-state comity and further society's interest in the finality of criminal convictions. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (recognizing Congressional "intent to channel prisoners' claim first to the state courts"); Panetti v. Quarterman, 551 U.S. 930, 945 (2007) ("[AEDPA's] design is to 'further the principles of comity, finality, and federalism.'") (quoting Miller-El v. Cockrell, 537 U.S. 322, 337 (2003)); Rhines v. Weber, 544 U.S. 269, 276 (2005) ("One of [AEDPA's] purposes is to 'reduce delays in the execution of state and federal criminal sentences, particularly in capital cases.'") (quoting Woodford v. Garvezu, 538 U.S. 202, 206 (2003)). In fact, Congress' very purpose in enacting AEDPA was "to restrict the availability of habeas corpus relief." Greenawalt v. Stewart, 105 F.3d 1268, 1275 (9th Cir. 1997), abrogation on other grounds recognized by Jackson v. Roe, 425 F.3d 645, 658-61 (9th Cir. 2005).
Congress set forth in AEDPA, "a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions must be given the benefit of the doubt." Pinholster, 536 U.S. at 181 (quotation marks and citations omitted); see also Harrington v. Richter, 562 U.S. 86, 102 (2011) ("If [AEDPA's] standard is difficult to meet, that is because it was meant to be."). Indeed, the writ of habeas corpus is intended to guard against "extreme malfunctions" in the judicial system, Brecht v. Abrahamson, 507 U.S. 619, 634 (1990) (quotations omitted), and is available only to those "whom society has grievously wronged." Calderon v. Coleman, 535 U.S. 141, 146 (1998) (per curiam) (internal quotations omitted). The district court may grant a writ of habeas corpus, "only on the basis of some transgression of federal law binding on state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985); see Engle v. Isaac, 456 U.S. 107, 119 (1982).
The AEDPA limits the availability of habeas relief for a claim adjudicated on its merits to circumstances where the state court's disposition 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. See 28 U.S.C. § 2254(d).
The prisoner bears the burden of proving his claims fit one of those criteria. See Pinholster, 563 U.S. at 181; Lambright v. Blodgett, 393 F.3d 943, 970 n.16 (9th Cir. 2004). Section 2254(d)(1)'s phrase "clearly established Federal law" "'refers to the holdings, as opposed to the dicta, of [the United States Supreme Court's] decisions as of the time of the relevant state-court decisions.'" Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). When the Supreme Court has not ruled on a particular legal issue, no "clearly established Federal law" exists, and the state court decision cannot be "contrary to, or involve[] an unreasonable application of," such law. 28 U.S.C. § 2254(d)(1); see Wright v. Van Patten, 552 U.S. 120, 126 (2008) ("Because our cases give no clear answer to the question presented, let alone one in [the prisoner's] favor, it cannot be said that the state court unreasonably applied clearly established Federal law. Under the explicit terms of § 2254(d)(1), therefore, relief is unauthorized.") (quotation marks, alterations, and citations omitted); Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) ("If no Supreme Court precedent creates clearly established federal law relating to the issue the habeas petition raised in state court, the state court's decision cannot be contrary to or an unreasonable application of clearly established federal law."); accord Richter, 562 U.S. at 102-03; Musladin, 549 U.S. at 77.
Relief under § 2254 may not be premised on the mere allegation that something in the state court proceedings was contrary to general notions of fairness; the United States Constitution must specifically protect against the alleged unfairness before relief is appropriate. See Engle, 456 U.S. at 119; Middleton, 768 F.2d at 1088. A state court decision is "contrary to" clearly established federal law when the court has applied a rule of law that contradicts the governing law set forth in Supreme Court precedent or has encountered a set of facts that are "materially indistinguishable" from a Supreme Court decision and yet reached a different result from the Supreme Court. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); see also Brown v. Payton, 544 U.S. 133, 141 (2005); Bell v. Cone, 535 U.S. 685, 694 (2002). A state court decision need not cite or discuss applicable Supreme Court precedent, "so long as neither the reasoning nor the result of the state-court decision contradicts [it]." Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (quotation marks omitted); see also Packer, 537 U.S. at 8.
Similarly, under 28 U.S.C. § 2254(d)'s "unreasonable application" clause, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 411; See also Richter, 562 U.S. at 101 ("For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.") (quotation marks omitted, emphases in original); Cone, 535 U.S. at 694 (unreasonable application distinct from an incorrect one).
The district court presumes that the state court's factual determinations are correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) ("[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."); see also Miller-El, 545 U.S. at 240 (describing the standard as "deferential and demanding," although not impossible); Purckett v. Elem, 514 U.S. 765, 769 (1995) (per curiam); Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir. 2004).
Ground One
Petitioner contends the trial court's imposition of lifetime probation violates his due process rights under the Fourteenth Amendment to the United States Constitution because A.R.S. § 13-903(E) is unconstitutionally vague. (Doc. 1. at 6.) In support of this claim, Petitioner argues that the trial court was allowed to impose a lifetime sentence based upon personal reasons because the trial judge discussed his own daughter on the record. Id. In rejecting his claim, the Arizona Court of Appeals applied state law determining there was "no error in the court's order of lifetime probation." (Doc. 18 at 29.)
Petitioner has failed to establish that the court of appeals' decision was either contrary to or an unreasonable application of United States Supreme Court precedent. See, e.g., Doc. 1 at 6. Likewise, Petitioner has failed to establish that the state courts' decision was based on an unreasonable determination of the facts. Id. Of note is the fact that by entering into the plea agreement, Petitioner agreed to the fact that he could be sentenced to a lifetime term of probation. See Doc. 17 at 12 ("PROBATION: Probation IS NOT available as to Count I. Probation IS available as to Count II of the Plea Agreement and may be up to lifetime probation....") (Emphasis in original.)
This Court determines that Petitioner is not entitled to relief on the merits of the claim alleged in Ground One. ... ...
Ground Two
In Ground Two, Petitioner claims that he received ineffective assistance of counsel in violation of his Sixth Amendment rights when "counsel failed to recognize that under the facts of my case, the dangerous crimes against children enhancement could not be applied under the federal constitution and prior state supreme court determinations of law and fact." (Doc.1 at 7.) Petitioner compares his case with State v. Bartlett, 171 Ariz. 302 (1992). Id. The Arizona Court of Appeals rejected Petitioner's argument that his sentence violates the Eighth Amendment. (Doc. 18 at 29-30.) The court of appeals held:
He has provided no evidence and cited no authority to support his argument that counsel's failure to assert a claim of cruel and unusual punishment as to such a sentence fell below prevailing professional norms.Id. at 30.
Petitioner has failed to establish that the court of appeals' decision was either contrary to or an unreasonable application of United States Supreme Court precedent. See, e.g., Doc. 1 at 7. Likewise, Petitioner has failed to establish that the decisions below were based on an unreasonable determination of the facts. Id.
This Court determines that Petitioner is not entitled to relief on the merits of the claim alleged in Ground Two. ... ... ... ... ... ... ... ... ... ... ...
RECOMMENDATION
The claim alleged in Ground One of the Petition is non-cognizable. The claim alleged in Ground Two of the Petition was waived. Both claims alleged in Grounds One and Two are without merit. The Magistrate Judge recommends that the district court, after its independent review, DENY and DISMISS the Petition for Writ of Habeas Corpus.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: 4:18-cv-00547-RCC.
Dated this 25th day of November, 2019.
/s/_________
Honorable D. Thomas Ferraro
United States Magistrate Judge