Souch v. Schaivo

• Decision Date: 30 April 2002
• Docket Number: No. 01-15487.,01-15487.
• Citation: 289 F.3d 616
• Parties: Gerald Charles SOUCH, Petitioner-Appellant, v. Don SCHAIVO, Deputy Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

289 F.3d 616

Gerald Charles SOUCH, Petitioner-Appellant, v. Don SCHAIVO, Deputy Warden, Respondent-Appellee.

No. 01-15487.

United States Court of Appeals, Ninth Circuit.

Submitted April 9, 2002^*.

Filed April 30, 2002.

Gerald Charles Souch, pro se, Florence, AZ, for the petitioner-appellant.

Janet Napolitano, Attorney General, AZ; Randall M. Howe, Chief Counsel, Criminal Appeals Section; Diane M. Ramsey, Assistant Attorney General, Criminal Appeals Section, Phoenix, AZ, for the respondent-appellee.

Appeal from the United States District Court for the District of Arizona; Roslyn O. Silver, District Judge, Presiding. D.C. No. CV-97-01663-ROS.

Before O'SCANNLAIN and TALLMAN, Circuit Judges, and KING,^** District Judge.

OPINION

O'SCANNLAIN, Circuit Judge.

We must decide whether a state trial court violated the Ex Post Facto Clause by determining that the sentences on multiple counts of conviction would run consecutively, rather than concurrently, under a state statute not yet in effect when the underlying crimes were committed.

I

This case arises out of habeas petitioner Gerald Souch's conviction in Arizona state court stemming from his activities of June 11, 1986. On that evening, clad in a frilly white dress and nylons, and wearing a white lacy bandana around his head, Souch broke into the house of Susan Gregor. Once inside, he woke Gregor, put his hand over her mouth, and held a knife to her neck. Souch then stripped her, forced her to submit to oral sex, forced her to perform oral sex on him, and finally, had intercourse with her. Afterward, he tied her up with an electrical cord, put a pillowcase over her head, and left the house.

An Arizona grand jury indicted Souch in connection with these events. On the first day of his ensuing trial before the Arizona Superior Court for Maricopa County, Souch entered an Alford plea¹ to one count of armed burglary, three counts of sexual assault, and one count of aggravated assault. Souch was later sentenced to consecutive sentences of twelve years for the armed burglary conviction, twelve years on each of the sexual assault convictions, and ten years on the aggravated assault conviction for a total of fifty-eight years.

A

On the date when Souch committed the underlying acts that led to the convictions in this case, Arizona law provided as follows:

Except as otherwise provided by statute, if multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run concurrently unless the court expressly directs otherwise, in which case the court shall set forth on the record the reason for its sentence.

A.R.S. § 13-708 (1978) (emphasis added). Later in 1986, the Arizona legislature amended this provision by changing the word "concurrently" to "consecutively." Laws 1986, Ch. 300, § 1; see also A.R.S. § 13-708 (2001) (Historical and Statutory Notes). This change was effective on August 13, 1986-two months after Souch committed the crimes but six months before he was sentenced.²

Nonetheless, the state trial judge apparently believed that the new version of A.R.S. § 13-708 applied to Souch's case. During Souch's plea colloquy on January 26, 1987, the judge told Souch that "[t]he law require[d] [his] sentences to be consecutive unless the court indicates they will be concurrent and state[d] specifically why they should be concurrent." And in a hearing on March 16 of that year, the court reiterated the point. Finally, during sentencing, the court remarked to Souch that

Your attorney asked for consideration of concurrent sentences, as you know. That's not possible. The legislature has indicated in these kinds of cases, consecutive sentences must be imposed unless we find reasons why the sentence should be concurrent. I don't find any reason at all why any of the sentences should be concurrent.

On the contrary, the court found several factors militating in favor of consecutive sentences, including (1) the fact that Souch's indictment came close on the heels of a prior release from the Department of Corrections; (2) the fact that Souch showed no remorse for his acts; (3) the court's finding that Souch's acts were done in a premeditated, deliberate, and calculating manner; and (4) the court's finding that Souch posed a danger to society. The court therefore determined that the sentences would run consecutively, rather than concurrently.

B

Following sentencing, Souch's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in the Arizona Court of Appeals. Souch himself filed a supplemental brief. The Court of Appeals considered all of the claims on the merits and affirmed the convictions and sentences in a memorandum decision. State v. Souch, No. CR-11455 (Ariz. Ct.App. filed Oct. 22, 1987). Souch petitioned for review by the Arizona Supreme Court which summarily denied the petition on March 23, 1988. Accordingly, his conviction became final on June 21, 1988. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir.1999). Souch then filed a series of seven different petitions for post-conviction relief in state court, appealing denials in each to various levels of the Arizona court system. The Arizona courts ultimately denied him relief.

C

Nearly nine years after his conviction became final, Souch filed a federal habeas petition on August 4, 1997,³ in which he presented ten different grounds for habeas relief. Eventually, however, he dropped the last nine claims, and proceeded only with the first: a claim that the trial judge's use of the incorrect statute at sentencing violated the Ex Post Facto Clause. After briefing, Magistrate Judge Sitver issued a Report and Recommendation which concluded that Souch's sentence did not violate the Ex Post Facto Clause. The District Court adopted the Report and Recommendation and entered judgment accordingly. This timely appeal followed.⁴

II

Souch's sole contention on appeal is that the trial judge's use of the amended version of A.R.S. § 13-708 at his sentencing, which was not in effect when he committed the underlying crimes, violated the Ex Post Facto Clause. Thus, he contends, he is entitled to habeas relief.

Because this case comes to this Court in the form of a habeas petition seeking relief from a state court adjudicated confinement, and the habeas petition was filed after the effective date of AEDPA, the panel may only grant the writ if the Arizona courts' decision is "contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). "That is, [Souch's] conviction must stand unless it leaves us with a definite and firm conviction that an error has been committed." McCoy v. Stewart, 282 F.3d 626, 629 (9th Cir.2002) (internal quotation marks omitted).

The Ex Post Facto Clause provides that "No State shall ... pass any ... ex post facto Law...." U.S. Const. art. I, § 10, cl. 1. This provision, the Supreme Court has explained, "incorporated a term of art with an established meaning at the time of the framing of the Constitution." California Dep't of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (citing Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)) (internal quotation marks omitted). Accordingly, the Court has held that the Clause "is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts." Id. (internal quotation marks omitted). Neither party argues that the legislation at issue in this case altered the definitions of any of the crimes to which Souch pleaded guilty. Rather, Souch contends that the trial court's use of the new version of A.R.S. § 13-708 increased the punishment for those crimes.

A

As the Supreme Court first explained over 200 years ago, the text and history of the Ex Post Facto Clause make clear that it prohibits states from enacting any law that "changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. (3 Dall.) 386, 391, 1 L.Ed. 648 (1798). Therefore, in considering whether the amended version of A.R.S. § 13-708 is subject to the constraints of the Ex Post Facto Clause when applied retroactively, the question we must answer today is not whether the statute "produces some ambiguous sort of `disadvantage,' ... but ... whether [it] ... increases the penalty by which a crime is punishable." Morales, 514 U.S. at 506 n. 3, 115 S.Ct. 1597; see also Miller v. Florida, 482 U.S. 423, 431, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) ("It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.") (internal quotation marks omitted). Accordingly, we must consider "whether the standards of punishment set up before and after the commission of an offense differ, and whether the later standard is more onerous than the earlier within the meaning of the constitutional prohibition" by comparing "the practical operation" of the pre-amendment version and the amended version of A.R.S. § 13-708 as applied to Souch's offenses. Murtishaw v. Woodford, 255 F.3d 926, 965 (9th Cir.2001) (citing Lindsey v. Washington, 301 U.S. 397, 400, 57 S.Ct. 797, 81 L.Ed. 1182 (1937)).

Souch argues that the former § 13-708 created a "presumption" that sentences would run concurrently, and required a trial judge to explain any departure from that presumption by indicating reasons that the sentences should run consecutively. The amended statute, he contends, reversed that presumption. Accordingly he concludes, the state trial court's use of the new statute at sentencing, even though it was not yet in effect when he committed the underlying crimes, resulted in increased...