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Alcarez-Guerrero v. Ryan

United States District Court, Ninth Circuit

October 1, 2013

Noel Alcarez-Guerrero, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

PAUL G. ROSENBLATT, District Judge.

Pending before the Court is a Report and Recommendation issued by United States Magistrate Judge Jacqueline Rateau that recommends denying Petitioner's habeas petition filed pursuant to 28 U.S.C. § 2254. (Doc. 18.) As thoroughly explained by Magistrate Judge Rateau, Petitioner is not entitled to relief as the claims raised in his petition were not properly exhausted and/or are without merit. As Petitioner's objections do not undermine the analysis and proper conclusion reached by Magistrate Judge Rateau, Petitioner's objections are rejected and the Report and Recommendation is adopted.[1]

ANALYSIS

Petitioner objects to the Report and Recommendation on three grounds: (1) the Court should consider his procedurally defaulted Claim 4 because Petitioner is actually innocent; (2) 28 U.S.C. § 2254 ("AEDPA") is unconstitutional; (3) the Magistrate erred in denying Petitioner's Claims 1, 2, 3 and 5 on the merits.

1. The Court declines to consider Petitioner's actual innocence claim

Petitioner contends that the Court should consider his procedurally defaulted Claim 4 because he is actually innocent. (Doc. 21, pg. 4.) Petitioner did not present this claim at any time in these proceedings prior to filing his Objection. The Court has discretion, but is not required, to consider evidence presented for the first time in a party's objection to a magistrate judge's recommendation. Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002). The Court declines to exercise its discretion to consider Petitioner's actual innocence claim. First, the claim is merely conclusory; Petitioner alleges only that he "is innocent of first degree murder." Conclusory allegations are not sufficient to support habeas relief. See Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995). In addition, Petitioner has failed to explain his failure to raise the actual innocence claim in his Petition, or in a reply to Respondents' Answer.[2] See United States v. Howell, 231 F.3d 615, 623 (9th Cir. 2000) (district court does not abuse its discretion in declining to consider new arguments raised in objection to report and recommendation which were available to counsel before the magistrate's proceedings began).

2. AEDPA is constitutional

Petitioner's Objection does not allege why Petitioner believes AEDPA to be unconstitutional. In his Petition, Petitioner argued that AEDPA unconstitutionally suspends the writ of habeas corpus and violates the separation of powers doctrine. These arguments are foreclosed by Crater v. Galaza, 491 F.3d 1119, 1129 (9th Cir. 2007).

3. The Magistrate Judge correctly concluded that Claims 1, 2, 3 and 5 are without merit

a. Claim 1

In Claim 1, Petitioner alleges that his natural life sentence was inconsistent with the Supreme Court's decision in Cunningham v. California, 549 U.S. 270, 288-89 (2007) and Alleyne v. United States, 133 S.Ct. 2151 (2013).

In Cunningham, the Supreme Court held that California's determinate sentencing law violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because it gave trial judges the authority to impose an upper term sentence based on aggravating circumstances without submitting the aggravating factors to the jury for factual finding. According to Petitioner, the trial court sentenced him to natural life after considering several aggravating factors that had not been found by the jury. However, unlike California's determinate sentencing law, Arizona's first-degree murder statute does not create tiers of punishment, requiring that an aggravating circumstance be found before a natural life sentence is imposed. Instead, Arizona law "provides the superior court with the discretion to sentence an offender within a range-from life to natural life-for non-capital first degree murder." See State v. Fell, 115 P.3d 594, 598 (Ariz. 2005). As such, it is in line with Apprendi and its progeny. See Apprendi, 530 U.S. at 481 ("we should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion - taking into consideration various factors relating both to offense and offender - in imposing a judgment within the range prescribed by statute.")

Similarly, Alleyne holds that "facts that increase mandatory minimum sentences must be submitted to the jury." 133 S.Ct. at 2163. The Alleyne court specifically stated that "our ruling today does not mean that any fact that influences judicial discretion must be found by a jury" and reaffirmed Apprendi 's conclusion that judges may exercise discretion in imposing a judgment within ...


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