Van Norman v. Schriro

• Decision Date: 13 August 2007
• Docket Number: No. CV-06-1808-PHX-DGC (LOA).,CV-06-1808-PHX-DGC (LOA).
• Citation: 616 F.Supp.2d 939
• Parties: Jason G. VAN NORMAN, Petitioner, v. Dora B. SCHRIRO; and Attorney General of the State of Arizona, Respondents.
• Court: U.S. District Court — District of Arizona

616 F.Supp.2d 939

Jason G. VAN NORMAN, Petitioner, v. Dora B. SCHRIRO; and Attorney General of the State of Arizona, Respondents.

No. CV-06-1808-PHX-DGC (LOA).

United States District Court, D. Arizona.

August 13, 2007.

Jason G. Van Norman, Buckeye, AZ, pro se.

Lacey Stover Gard, Office of the Attorney General, Phoenix, AZ, for Respondents.

ORDER

DAVID G. CAMPBELL, District Judge.

Pending before the Court are Petitioner Jason Van Norman's petition for writ of habeas corpus and United States Magistrate Judge Lawrence Anderson's report and recommendation ("R & R"). Dkt. ## 1, 16. The R & R recommends that the Court deny the petition. Petitioner has filed objections to the R & R. Dkt. # 17. The Court will accept the R & R and deny the petition.

I. Background.

Petitioner pled guilty in state court to theft of a means of transportation with one prior felony conviction. The trial court sentenced Petitioner to an aggravated ten-year prison term. The trial court found and considered three aggravating factors: Petitioner's three prior felony convictions, the harm caused to the victim, and the danger posed to the public.

The trial court granted Petitioner's petition for post-conviction relief on the ground that the aggravated sentence was unconstitutional. Relying on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the trial court reasoned that the aggravated sentence violated Petitioner's Sixth Amendment right to a jury trial because the court had enhanced the sentence based in part on subjective findings of non-prior conviction aggravating circumstances. The Arizona Court of Appeals reversed, holding that because Petitioner's prior felony convictions were Blakely-exempt factors, the trial court was permitted to find and consider additional aggravating factors in determining the appropriate sentence. The Arizona Supreme Court denied review.

II. Standard of Review.

The Court may not grant habeas relief unless it concludes that the state's "adjudication of the claim—(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal 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 [s]tate court proceeding." 28 U.S.C. § 2254(d)(1)-(2).

III. Analysis.

Petitioner claims that the aggravated sentence imposed by the trial court violated his Fifth Amendment right to due process and his Sixth Amendment right to trial by jury. Dkt. # 1 at 5. The R & R concludes that the Fifth Amendment claim is barred because it is procedurally defaulted and Petitioner has not established a basis to excuse his default. Dkt. # 11 at 9-11. Petitioner does not object to this conclusion, which relieves the Court of its obligation to conduct de novo review of the issue. See 28 U.S.C. § 636(b)(1); Fed. R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ("[Section 636(b)(1)] does not ... require any review at all ... of any issue that is not the subject of an objection."); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (same). The Court will accept the R & R with respect to Petitioner's Fifth Amendment claim.

The R & R further concludes that the state's rejection of Petitioner's Blakely challenge was neither contrary to, nor an unreasonable application of, Supreme Court jurisprudence because the Supreme Court has never held that the Sixth Amendment prohibits the imposition of an enhanced sentence where at least one Blakely-exempt aggravating factor expands the sentencing range. Dkt. # 16 at 14-19. The R & R notes that courts in this Circuit have consistently held that a prior conviction alone is sufficient to increase the range within which a judge may impose a sentence. Id. at 15-17 (citing Jones v. Schriro, No. CV 05-3720-PHX-JAT, 2006 WL 1794765 (D.Ariz. June 27, 2006); Garcia v. Schriro, No. 06-0855-PHX-DGC (DKD), 2006 WL 3292473 (D.Ariz. Nov.9, 2006); Nino v. Flannigan, No. 2:04-cv-02298-JWS, 2007 WL 1412493 (D.Ariz. May 14, 2007)).

Petitioner objects to the R & R on the ground that the Magistrate Judge relied solely on decisions from courts of this District in support of his conclusion that the state's adjudication of Petitioner's claim was not inconsistent with the Blakely. Dkt. # 17 at 5. But Petitioner does not explain why the reasoning of the district court decisions is incorrect. Moreover, the Magistrate Judge also relied on Stokes v. Schriro, 465 F.3d 397 (9th Cir.2006), in which the Ninth Circuit held that there is no Blakely violation where the defendant is not exposed to a greater sentence than that authorized solely by the facts found at trial or the fact of a prior conviction. Id. at 16 (citing Stokes, 465 F.3d at 402-03).

The R & R correctly concludes that the state's adjudication of Petitioner's claim was neither contrary to, nor an unreasonable application of, the Blakely line of cases. See Blakely, 542 U.S. 296, 124 S.Ct. 2531; Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Under Arizona's sentencing scheme, the existence of a single aggravating factor exposes a defendant to an enhanced sentence. See A.R.S. § 13-702. In applying Blakely to this sentencing scheme, the Arizona Supreme Court concluded that "once a jury finds or a defendant admits a single aggravating factor, the Sixth Amendment permits the sentencing judge to find and consider additional factors relevant to the imposition of a sentence up to the maximum[.]" State v. Martinez, 210 Ariz. 578, 115 P.3d 618, 625 (2005). "In other words, once an aggravating factor—properly established through a jury finding, an admission, or a prior conviction—increases a defendant's maximum sentence, the court may independently find and consider other aggravating factors to support a sentence within the new maximum." Garcia, 2006 WL 3292473, at *2 (emphasis added).

In this case, the trial court properly considered Petitioner's prior convictions as an aggravating circumstance that increased the maximum allowable sentence under Blakely. Once the new maximum was established, the court was free to consider the aggravating circumstances of harm to the victim and danger to the public in deciding where to sentence Petitioner within the new maximum range. See Booker, 543 U.S. at 230, 125 S.Ct. 738; Martinez, 115 P.3d at 624-25 (interpreting Blakely and Booker to require that only the aggravating factor that initially increases a sentencing ceiling must comport with Blakely's heightened proof requirements). Petitioner's aggravated sentence comports with the Sixth Amendment. See Jones, 2006 WL 1794765, at *3 n. 2 ("Based upon Jones' prior conviction alone, the sentencing judge was authorized to find the remaining aggravating factors."); Nino, 2007 WL 1412493, at *4 ("A history of prior convictions is Blakely exempt. Therefore, since one Blakely exempt factor supports the aggravated sentence, consideration of other factors [when] imposing the sentence does not violate Petitioner's Fifth and Sixth Amendment rights established in Blakely."); Beals v. Bartos, No. 2:06-cv-00801-JWS, 2007 WL 2220467, at *8 (D.Ariz. Aug.2, 2007) ("Although the trial court also found several other aggravating factors, Petitioner's prior felony convictions were sufficient to expose him to the aggravated term of 10 years' imprisonment."). The Court will accept the R & R with respect to Petitioner's Sixth Amendment claim.

IT IS ORDERED:

1. Magistrate Judge Lawrence Anderson's report and recommendation (Dkt.# 16) is accepted.

2. Petitioner Jason Van Norman's petition for writ of habeas corpus (Dkt.# 1) is denied.

3. The Clerk shall terminate this action.

REPORT AND RECOMMENDATION

LAWRENCE O. ANDERSON, United States Magistrate Judge.

This matter arises on Petitioner's Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 alleging that Petitioner's aggravated sentence violates the Sixth Amendment because the aggravating factors were not submitted to a jury and proved beyond a reasonable doubt. (docket # 1) Respondents have filed an Answer (docket # 12) to which Petitioner has replied. (docket # 14)

FACTUAL AND PROCEDURAL BACKGROUND

On March 18, 2003, the State filed an information in CR2003-009497-001DT¹ charging Petitioner with theft of a means of transportation, a class 3 felony. (Respondents' Exh. B) The State also alleged that Petitioner had three prior felony convictions and had committed the charged offense while released on bond. (Respondents' Exh. B) On September 25, 2003, pursuant to a plea agreement, Petitioner pled guilty to theft of a means of transportation with one prior felony conviction. (Respondents' Exh. C). Petitioner's conviction of theft of a means of transportation with one prior felony conviction, a class three felony, yielded a minimum sentence of 4.5 years imprisonment, a presumptive term of 6.5 years, and a maximum term of 13 years. A.R.S. § 13-604(B). Arizona Revised Statutes § 13-702(B), 13-702(C) further provide that the sentence may be mitigated by a maximum of two years or aggravated up to three years.

On January 9, 2004, the trial court² accepted the plea and sentenced Petitioner to an aggravated term of ten years' imprisonment. (Respondents' Exh. F at 27-28) During the sentencing hearing, the trial court found the following aggravating factors: (1) Petitioner's prior criminal history, which included three prior felony convictions; (2) the harm Petitioner caused the victim; and (3) the danger to which Petitioner exposed other members of the public. (Respondents' Exh. F at 27)

Rule 32 "of-right" Proceeding

By pleading guilty, Petitioner waived his right to a direct appeal under Arizona law. However, he retained his right to seek review in an ...