Patsalis v. Shinn

• Decision Date: 06 September 2022
• Docket Number: 20-16800
• Citation: 47 F.4th 1092
• Parties: Atdom Mikels PATSALIS, Petitioner-Appellant, v. David SHINN, Director; Attorney General for the State of Arizona, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

47 F.4th 1092

Atdom Mikels PATSALIS, Petitioner-Appellant,
v.
David SHINN, Director; Attorney General for the State of Arizona, Respondents-Appellees.

No. 20-16800

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 9, 2021 San Francisco, California
Filed September 6, 2022

Jordan Green (argued) and Karl Worsham, Perkins Coie LLP, Phoenix, Arizona; Mark Kokanovich and Ian Bucon, Ballard Spahr LLP, Phoenix, Arizona; Lindsay Herf, Arizona Justice Project, Phoenix, Arizona; for Plaintiff-Appellant.

Jillian B. Francis (argued), Assistant Attorney General; J.D. Nielsen, Habeas Unit Chief; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondents-Appellees.

Before: Eugene E. Siler,^* Morgan Christen, and Danielle J. Forrest, Circuit Judges.

Dissent by Judge Christen

FORREST, Circuit Judge:

47 F.4th 1095

Petitioner-Appellant Atdom Patsalis seeks federal habeas relief, arguing that his 292-year total sentence imposed by an Arizona state court is grossly disproportionate to his crimes and, therefore, cruel and unusual in violation of the Federal and Arizona Constitutions. Patsalis was convicted of 25 felonies (mostly residential burglaries) committed against multiple victims over a three-month period. These were not his first crimes. The trial court imposed consecutive sentences on all but two of the 25 counts, resulting in an overall sentence of 292 years imprisonment.

The Arizona Court of Appeals rejected Patsalis's constitutional claim concluding that proportionality should be assessed based on each individual conviction and sentence, not the cumulative effect of consecutive sentences, and that none of Patsalis's individual sentences were disproportionate. Patsalis sought habeas relief under 28 U.S.C. § 2254. He argued that the Anti-Terrorism and Effective Death Penalty Act's (AEDPA) deferential standard of review does not apply to the Arizona Court of Appeals' decision because that court did not consider the cumulative impact of his sentence. Instead, he argued that he was entitled to de novo review on this claim. The district court disagreed, afforded AEDPA deference to the Arizona court, and concluded that Patsalis is not entitled to relief. We affirm.

I. BACKGROUND

A. Patsalis's Crimes & Trial

When he was 21 years old, Patsalis committed 25 separate felonies in three months, mostly in the same residential neighborhood. Law enforcement identified Patsalis as a suspect and obtained a search warrant for the home where he was staying. Patsalis fled when officers arrived to execute the warrant, but soon after he returned to the home and confessed to his crimes.

Patsalis was offered two alternative plea deals, and the trial judge explained the terms of the deals and that Patsalis faced up to 490 years' imprisonment if he went to trial. Patsalis rejected the plea offers and went to trial, and a jury convicted him on 12 counts of burglary in the second degree, 10 counts of burglary in the third degree, theft of a credit card, unlawful means of transportation, and attempted unlawful means of transportation. The jury also found two or more aggravating circumstances on all but two counts of conviction.

At sentencing, the trial judge found that Patsalis was a category three repetitive offender because he had two prior felony convictions that impacted his sentencing calculation. The trial judge also considered Patsalis's lack of empathy for his victims; that his victims included elderly, retired people; that his crimes were premeditated; that he was not under the influence during the commission of any of his crimes; and that his prior incarcerations had not deterred him from continuing to engage in criminal conduct. The trial judge rejected

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Patsalis's argument that the 25 offenses were part of one continuous spree because Patsalis committed them over three months, giving him "plenty of time to reflect upon [his] conduct and not to continue."

The trial judge trial ordered Patsalis to serve all but two of his 25 sentences consecutively, resulting in a cumulative 292-year prison sentence. The trial judge stated that consecutive sentences were required¹ and discussed the deterrent effect of imposing consecutive sentences, stating that he could not "send the message to the community that you can burglarize multiple houses and victimize multiple people on multiple occasions, and you'll simply get one sentence for it. There has to be accountability and responsibility for each separate offense that you commit and have been convicted of." The trial judge declined to find that Patsalis's age or confession mitigated his conduct.

B. Direct Appeal

Patsalis appealed his sentence arguing, among other things, that the trial court violated the Eighth Amendment's prohibition against cruel and unusual punishment by sentencing him to a "total sentence of 292 years." State v. Patsalis , No. 1 CA-CR 15-0409, 2016 WL 3101786, at *4–5 (Ariz. Ct. App. June 2, 2016). Addressing this claim, the Arizona Court of Appeals cited Arizona's general rule against "consider[ing] the imposition of consecutive sentences in a proportionality inquiry[,]" and rejected Patsalis's federal and state constitutional claims challenging his consecutive sentences as grossly disproportionate to his crime. Id. at *5. The Arizona Court of Appeals focused its analysis "on the individual sentence imposed for each count and not the cumulative sentence of 292 years." Id. (internal quotation marks and citation omitted). With this legal framework, it concluded that Patsalis's individual sentences were not "grossly disproportionate" because he was a repeat offender and "there were separate victims with a separate harm" for most of his 25 convictions. Id. (internal quotation marks omitted).

Patsalis argued that his convictions warranted "an exception to the general rule ... and the cruel and unusual punishment analysis [should be] applied to the total sentence of 292 years." Id. The Arizona Court of Appeals disagreed because "the jury convicted Patsalis for exactly the type of conduct that the statutes prohibit" and because the victims' testimonies belied Patsalis's claim that his offenses were not serious. Id. at *6. The Arizona Supreme Court denied review.

C. Post-Conviction Proceedings

Patsalis timely filed a notice of post-conviction relief in Arizona state court arguing, among other things, that his sentence violated the Eighth Amendment. The Arizona trial court denied Patsalis's petition for post-conviction relief. Patsalis did not appeal that decision.

Patsalis timely filed a Section 2254 habeas petition in federal court claiming that his cumulative sentence of 292 years in prison is cruel and unusual punishment. Arizona responded that Patsalis's claim failed on the merits because the Arizona Court of Appeals' decision—the last reasoned decision—was entitled to AEDPA deference and was not contrary to clearly established Supreme Court precedent.

The district court found that the Arizona Court of Appeals did not consider Patsalis's

47 F.4th 1097

argument that his cumulative sentence was disproportionate. Nonetheless, the district court concluded that the Arizona Court of Appeal's decision was entitled to AEDPA deference and denied the habeas petition because that court's decision "squarely addressed the merits of [Patsalis]'s legal theory of his case, and rejected it on grounds that are not contrary to or an unreasonable application of clearly established federal law." Patsalis v. Att'y Gen. of Ariz. , 480 F. Supp. 3d 937, 948, 952 (D. Ariz. 2020). Alternatively, the district court concluded that "even under de novo review, [Patsalis's] claim fail[ed] as a matter of law because a proportionality analysis is not applied to consecutive sentences as a whole, but only to each individual sentence; and none of [Patsalis's] individual sentences were disproportionate to his crime." Id. at 963. The district court granted Patsalis a certificate of appealability on his Eighth Amendment claim. Id. at 963–64.

On appeal, Patsalis argues that the Arizona Court of Appeals' decision is not entitled to AEDPA deference, and, even if it was, we should review its decision de novo because its holding that Patsalis's consecutive or cumulative sentences were not disproportionate in violation of the Eighth Amendment is contrary to clearly established Supreme Court precedent.

II. DISCUSSION

We review the denial of a Section 2254 habeas corpus petition de novo and any underlying factual findings for clear error. See Martinez v. Cate , 903 F.3d 982, 991 (9th Cir. 2018). "The district court's application of AEDPA to the last reasoned state court decision is a mixed question of law and fact which we review de novo." Mann v. Ryan , 828 F.3d 1143, 1151 (9th Cir. 2016).

A. AEDPA Deference

AEDPA "restricts the circumstances under which a federal habeas court may grant relief to a state prisoner whose claim has already been ‘adjudicated on the merits in State court.’ " Johnson v. Williams , 568 U.S. 289, 292, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013) (quoting 28 U.S.C. § 2254(d) ). Specifically, if AEDPA applies, habeas relief cannot be granted unless the state court's decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." Id. (quoting 28 U.S.C. § 2254(d) ); see also Wetzel v. Lambert , 565 U.S. 520, 525, 132 S.Ct. 1195, 182 L.Ed.2d 35 (2012) (per curiam) (stating relief should be denied "unless each ground supporting the state court decision is examined and found to be unreasonable under AEDPA.").

A decision is not objectively unreasonable just because it is incorrect or even clearly erroneous. See Lockyer v. Andrade , 538 U.S. 63, 75–76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). That is, "even a strong case for relief does not mean a...