Patsalis v. Attorney Gen. of Ariz.

• Decision Date: 18 August 2020
• Docket Number: No. CV-18-08101-PCT-JAT,CV-18-08101-PCT-JAT
• Parties: Atdom Mikels PATSALIS, Petitioner, v. ATTORNEY GENERAL OF the State of ARIZONA, et al., Respondents.
• Court: U.S. District Court — District of Arizona

480 F.Supp.3d 937

Atdom Mikels PATSALIS, Petitioner,

v.ATTORNEY GENERAL OF the State of ARIZONA, et al., Respondents.

No. CV-18-08101-PCT-JAT

United States District Court, D. Arizona.

Signed August 18, 2020

Filed August 19, 2020

Ian Ormsby Bucon, Mark Samuel Kokanovich, Ballard Spahr LLP, Jordan Green, Perkins Coie LLP, Lindsay Ann Herf, Arizona Justice Project, Phoenix, AZ, for Petitioner.

Jennifer Londono Holder, Jillian Brittany Francis, Office of the Attorney General, Phoenix, AZ, for Respondents.

ORDER

James A. Teilborg, Senior United States District Judge

Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus. The Magistrate Judge to whom this case was assigned has issued a Report and Recommendation (R&R) recommending that the Petition be granted and that Petitioner be returned to state court for resentencing before a different judge. (Doc. 32 at 27). In summary, the basis for this recommendation is the Magistrate Judge's conclusion that Petitioner's sentences violate the Eighth Amendment's Cruel and Unusual Punishment Clause. Although not expressly stated in the R&R, implicit in the recommendation that Petitioner be returned to state court for resentencing is a mandate that the new judge must give a lower sentence to not run afoul of the Constitution. Respondents have objected to the R&R. (Doc. 35). Petitioner, through counsel, has responded to the objection. (Doc. 36).

I. Review of R&R

This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made , but not otherwise." United States v. Reyna-Tapia , 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone , 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) ("Following Reyna-Tapia , this Court concludes that de novo review of factual and legal issues is required if objections are made, ‘but not otherwise.’ "); see also Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt. , 589 F.3d 1027, 1032 (9th Cir. 2009) (stating that the district court "must review de novo the portions of the [magistrate judge's] recommendations to which the parties object"). District courts are not required to conduct "any review at all ... of any issue that is not the subject of an objection." Thomas v. Arn , 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; see also 28 U.S.C. § 636(b)(1) ("[T]he court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made.").

II. Review of State Court Decision

The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is incarcerated based on a state conviction. With respect to any claims that Petitioner exhausted before the state courts, under 28 U.S.C. § 2254(d)(1) and (2) this Court must deny the Petition on those claims unless "a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law" or was based on an unreasonable determination of the facts. See Lockyer v. Andrade , 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Further, this Court must presume the correctness of the state court's factual findings regarding a petitioner's claims. 28 U.S.C. § 2254(e)(1). Additionally, "[a]n application for a 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." 28 U.S.C. § 2254(b)(2).

To determine whether a state court ruling was "contrary to" or involved an "unreasonable application" of federal law, courts look exclusively to the holdings of the Supreme Court that existed at the time of the state court's decision. Greene v. Fisher , 565 U.S. 34, 38, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011). A state court's decision is "contrary to" federal law if it applies a rule of law "that contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Mitchell v. Esparza , 540 U.S. 12, 14, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (citations omitted). A state court decision is an "unreasonable application of" federal law if the court identifies the correct legal rule, but unreasonably applies that rule to the facts of a particular case. Brown v. Payton , 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree on the correctness of the state court's decision.’ " [Harrington v. ] Richter , 562 U.S. [86] at 101, 131 S.Ct. 770 [178 L.Ed.2d 624 (2011)] (citing Yarborough v. Alvarado , 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ).

Amaral v. Ryan , No. CV16-00594-PHX-JAT-BSB, 2018 WL 6931889, at *5 (D. Ariz. June 26, 2018) (alterations in original), report and recommendation adopted , 2018 WL 6695951, at *1 (D. Ariz. Dec. 20, 2018).

III. Factual and Procedural Background

A. General Background

The R&R recounts the factual and procedural background of this case. (Doc. 32 at 1-10). Respondents, in their objections, supplemented this factual background. (Doc. 35 at 1-8). In the response to the objections, Petitioner also supplemented the factual background. (Doc. 36 at 2-3). Of the facts the parties supplemented, only the facts surrounding ground 4 of the Petition could be construed as an "objection." Except as to ground 4, the Court accepts the R&R's factual and procedural background, as supplemented by the parties.

In brief summary, Petitioner was sentenced to 292 years in prison for committing 25 separate crimes (over the course of approximately two months from November 2013 to January 2014), the majority of which were residential burglaries. (Doc. 9-2 at 58-109). Specifically, Petitioner was convicted of 14 residential burglaries, eight burglaries of structures other than residences, one count of theft of a credit card, one count of unlawful use of a means of transportation and one count of attempted unlawful use of a means of transportation. (Doc. 9-2 at 68). Before Petitioner committed the 25 felonies that underlie the sentences in this case, the trial judge noted Petitioner had a criminal history as follows:

The Court finds that all 25 counts are repetitive because [Petitioner] was previously convicted of criminal trespass in the first degree, a class 6 felony, on August 30th, 2010; criminal damage, a class 6 felony, on August 30th, 2010....

As the Court has previously indicated, the Court will count that as one historical prior felony conviction.

[Petitioner was] also convicted of burglary in the third degree, a class 4 felony, on March 21st, 2011....

The Court finds that [Petitioner] has two historical prior felony convictions, and therefore, he is in a category 3 repetitive offender range as to all 25 counts.

Mr. Patsalis, when you were 16 years of age you were placed on juvenile intensive probation; and that obviously is the highest level of probation we can place juvenile offenders on. That had no deterrent effect on you because when you were 17 you committed felony offenses; you were transferred to adult court as a juvenile for felony offenses.

You were placed on probation, your probation was revoked, and you were sentenced to prison. That had no deterrent effect on you because when you were 18 you were convicted of burglary in the third degree in Mohave County, and you were sentenced to prison on that offense as well.

You were released from prison, and now at the age of 22—perhaps you were 21 when this happened—you're committing 25 felony offenses down in the Bullhead City area.

And one of the observations I have is the juvenile criminal justice system and the adult justice system has had no effect on you whatsoever in deterring your criminal behavior.

(Doc. 9-2 at 68-70).

As indicated above, Petitioner argues that sentences of a combined 292 years are not proportional to the crimes he committed.

B. Ground 4

Ground 4 involves whether the state trial judge, at sentencing, understood that he had the discretion to give Petitioner either consecutive or concurrent sentences. Specifically, Petitioner argues that the state trial court erroneously believed that he was required by law to impose consecutive sentences, and that such a mistaken belief violated the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. 32 at 11). The R&R concluded that this claim was presented to the state court solely as a state law claim. (Id. at 17). The R&R then concluded that as a federal claim, this claim was unexhausted, and that returning to state court on this claim would be futile. (Id. ). Finally, the R&R concluded that Petitioner had not shown cause and prejudice nor a fundamental miscarriage of justice to overcome his failure to exhaust this claim; thus, relief should be denied. (Id. ). Neither party objected to this portion of the R&R. However, in discussing another claim of the petition, the R&R seemingly considered the state court's motivation and potential confusion as a basis for granting relief. (Id. at 22). Presumably as a result, in their objections, Respondents reiterated that the state court did not commit any error because the trial judge understood his discretion. The Court agrees with Respondents.

At the time of Petitioner's sentence, A.R.S. § 13-711(A)¹ stated, "multiple sentences of imprisonment [ ] imposed on a person at the same time shall run consecutively, unless the court expressly directs otherwise." A.R.S. § 13-711(A) was amended in 2019 to read, that sentences "may run consecutively or concurrently, as determined by the court." While this amendment appears to be a change in the law, the amendment merely causes the language of ...