McQueary v. Blodgett

• Decision Date: 01 October 1990
• Docket Number: No. 89-35817,89-35817
• Parties: James Robert McQUEARY, Petitioner, v. James BLODGETT, Superintendent, WSP; Corrections, Dept of; Indeterminate Sentencing Review Board, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 829

924 F.2d 829

James Robert McQUEARY, Petitioner, v. James BLODGETT, Superintendent, WSP; Corrections, Dept of Indeterminate Sentencing Review Board, Respondents.

No. 89-35817.

United States Court of Appeals Ninth Circuit.

Submitted Oct. 1, 1990. ^*

Decided Jan. 10, 1991.

Paul J. Lyon, Walla Walla, Wash., for petitioner.

Thornton Wilson, Asst. Atty. Gen., Olympia, Wash., for respondents.

Appeal from the United States District Court for the Western District of Washington.

Before KOZINSKI, O'SCANNLAIN and FERNANDEZ, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

James Robert McQueary appeals from dismissal of his petition for a writ of habeas corpus.

I

The parties agree that this court has jurisdiction, if at all, under 28 U.S.C. Sec. 2254, which provides that federal courts "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. Sec. 2254(a) (1988) (emphasis added). The district court concluded that McQueary had failed to present a cognizable claim under the Constitution or laws or treaties of the United States. Because we agree with that conclusion, we affirm dismissal of the petition. ¹ See Fed.R.Civ.P. 12(b)(6).

II

Appellant McQueary was convicted of first-degree assault on his own plea on August 4, 1976. His crime involved the assault, stabbing, and abandonment of a woman in a secluded, wooded area. Following his conviction, the trial court imposed a life sentence with no recommendation for a minimum term of confinement. The prosecution recommended seventy-five years, and the state Board of Prison Terms and Paroles (now called the Indeterminate Sentence Review Board) decided upon fifty years.

In 1985, McQueary filed a "personal restraint petition," a Washington civil action, to challenge the legitimacy of his sentence. He claimed that he was entitled to be sentenced under the Sentencing Reform Act of 1981 ("SRA"). ² The Washington Court of Appeals, which has jurisdiction in such actions, dismissed the petition for failure to state a claim. See In the Matter of McQueary, No. 16826-6-I (Wash.Ct.App. Sept. 23, 1985) [hereinafter McQueary I-A ]. The court concluded that McQueary had no right to have the SRA applied to his case. Agreeing that the SRA "does not apply retroactively to minimum terms set prior to the Act's effective date," the Washington Supreme Court denied discretionary review. In the Matter of McQueary, No. 52122-1 (Wash. Nov. 4, 1985) [hereinafter McQueary I-B ].

In 1986, McQueary filed another personal restraint petition in which he (a) reasserted his initial claim and (b) contended that the SRA's new policies for inmate progress hearings are illegal. The Washington Court of Appeals dismissed the first issue as res judicata and dismissed the second for failure to state a claim. See In the Matter of McQueary, No. 18231-5-I (Wash.Ct.App. July 22, 1986) [hereinafter McQueary II ].

In 1987, McQueary tried an alternative approach and petitioned the United States District Court for a writ of habeas corpus. He alleged due process and equal protection violations in the state's failure to reduce his sentence under the SRA. The court denied the petition because, while the suit was pending, McQueary " 'received the relief which he originally requested:' " after conducting one of its reviews, the Review Board decided to reduce McQueary's minimum term by more than half--from fifty years to 280 months. Brief for Appellant-Petitioner at 3 (quoting trial record).

Despite the magnitude of this reduction, however, McQueary's new minimum term still grossly exceeded the SRA's "standard sentence range" for his offense: 87-117 months. The Review Board justified retention of the additional time by pointing to seven aggravating circumstances: (1) abduction of the victim by deception, (2) attempted rape, (3) twice choking the victim to unconsciousness, (4) severely wounding the victim, (5) abandonment of the victim after inflicting the wound, (6) likelihood of posing a continual threat to women, and (7) the prosecutor's recommendation.

McQueary remained unsatisfied and in 1987, he filed a third personal restraint petition. Although the Washington Court of Appeals acknowledged that three of the grounds relied upon by the Review Board "arguably would not qualify as aggravating circumstances under the Sentencing Reform Act," the court concluded that "the remaining factors justify the Board in setting petitioner's term of confinement outside the presumptive range." ³ The Washington Supreme Court agreed, noting that McQueary's abandonment of his severely wounded victim constituted "an act of deliberate cruelty" sufficient in itself to justify an extended minimum term under the SRA. McQueary IV-B at 1; see supra note 3. Satisfied that enough "factors support the exceptional sentence," the supreme court declined to review the appellate court's denial order. Id.

The present action represents McQueary's fifth attempt to persuade the judicial system to reduce his minimum term. ⁴ He has failed three times in the state courts and twice in the federal district court. In the current appeal, he presents three constitutional claims. He alleges that the state's insistence upon a term that exceeds the "standard sentence range" specified in the SRA constitutes (1) a denial of due process, (2) a denial of equal protection, and (3) cruel and unusual punishment. See U.S. Const. amends. XIV, VIII.

III

A

We review a district court's dismissal of a habeas petition de novo. See Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir.1985). Although the district court ultimately concluded that an evidentiary hearing was not necessary, see McQueary v. Blodgett, No. C89-246R at 1 (W.D.Wash. Oct. 10, 1989) [hereinafter McQueary V-A ] (order denying habeas petition), it did conduct a thorough investigation of appellant's allegations. See Magistrate's Report and Recommendation, No. C89-246R (W.D.Wash. July 31, 1989) [hereinafter Magistrate's Report]. After conducting our own independent review, we conclude that the district court correctly viewed the facts and the record in this case. Appellant cannot claim that he has been denied the independent consideration owed him by the federal courts. The pertinent facts are not in dispute, and denial of an evidentiary hearing was entirely proper. See 28 U.S.C. Sec. 2254(d) (1988) (explaining when federal courts must provide evidentiary hearings to habeas petitioners); see also Townsend v. Sain, 372 U.S. 293, 310-19, 83 S.Ct. 745, 755-60, 9 L.Ed.2d 770 (1963); Brown v. Allen, 344 U.S. 443, 463, 73 S.Ct. 397, 410, 97 L.Ed. 469 (1953) ("Where the record of the application [for habeas relief] affords an adequate opportunity to weigh the sufficiency of the allegations and the evidence, and no unusual circumstances calling for a hearing are presented, a repetition of the trial is not required.").

B

One other threshold matter deserves comment. Because federal habeas is an extraordinary remedy that requires a federal court's intrusion upon a sovereign state's exercise of its own police power, the Supreme Court long ago laid down the rule that a petitioner must first exhaust every available avenue of relief at the state level before raising his claims here. See Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). That requirement is now also statutory. See 28 U.S.C. Sec. 2254(b) (1988).

Appellee argued below that appellant had not previously raised his third claim, the eighth amendment charge, in the state courts. ⁵ See Magistrate's Report at 5. The district court found on the contrary that appellant had given "the highest state court in Washington 'a fair opportunity to consider the claim[ ] and to correct the asserted constitutional defect[ ].' " Id. at 6 (quoting Hudson v. Rushen, 686 F.2d 826, 830 (9th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1896, 77 L.Ed.2d 285 (1983)). We agree that "[t]he facts upon which [Appellant] relies to support his federal habeas claim are the same as those relied upon in state court, and [that] the substance of his arguments has been fairly presented" at the state level. Magistrate's Report at 6; see McQueary V-A at 1. We conclude, therefore, that this court may proceed to consider the petition.

IV

Appellant's first claim--that the state's refusal to reduce his minimum term denies his right to due process--is not a cognizable constitutional claim on the facts alleged. Appellant does not argue that he was denied due process in the imposition of his sentence; indeed, the record shows that he has had a full and fair opportunity to have his case heard--both before the state courts and before the Review Board. Appellant alleges constitutional flaws neither in the state's sentencing procedures nor in the procedures the state provides for reviewing its sentences. Rather, appellant challenges the substantive result of all those procedures: the actual sentence itself.

In essence, appellant argues that his minimum term is arbitrarily excessive and unfair. He asserts that it is a denial of the "liberty interest" the state allegedly vested in him when the SRA went into effect and created a "reasonable expectation of a reduced sentence." Brief for Appellant-Petitioner at 12. We are not persuaded and conclude that the state has created no such liberty interest and that any expectation appellant has to the contrary is unreasonable.

For the proposition that a particular statutory scheme may create a liberty interest so that departures from it constitute a denial of due process, appellant cites Greenholtz v. Inmates of the Neb. Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). See id. at 9, 12, 99 S.Ct. at 2104, 2106. Appellant's reliance on Greenholtz...